Is Obama's Department Of Labor About To Redefine "Spouse?"

It sure looks like it…

WASHINGTON – The Labor Department intends to issue regulations this week ordering businesses to give gay employees equal treatment under a law permitting workers unpaid time off to care for newborns or loved ones.

Labor Secretary Hilda Solis planned to announce Wednesday that the government would require employers to extend the option that has been available to heterosexual workers for almost two decades, two officials briefed on the plan said Monday.

Here’s the plan, such that it is (from the same article)…

The Family and Medical Leave Act allows workers to take up to 12 weeks of unpaid leave each year to take care of loved ones or themselves. The 1993 law, which also allows employees to take time off for adoptions, has previously only been applied to heterosexual couples.

The Labor Department planned to extend those rights based on a new interpretation of the law, the officials said. There was no plan to ask Congress to change the law, which means future presidents could reverse the decision.

There’s a very interesting, and quasi editorializing, sentence there: “The 1993 law… has previously only been applied to heterosexual couples,” implies that the law doesn’t distinguish between heterosexual and homosexual couples. Technically that’s correct, as can be seen in the law:

29 CFR 825.112 – Qualifying reasons for leave, general rule.

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see Sec. 825.120);
(2) For placement with the employee of a son or daughter for adoption or foster care (see Sec. 825.121);
(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see Sec. Sec. 825.113 and 825.122);
(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see Sec. Sec. 825.113 and 825.123);
(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation (see Sec. Sec. 825.122 and 825.126); and
(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (see Sec. Sec. 825.122 and 825.127).

(b) Equal application. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child.

The FMLA as it stands now applies equally to homosexuals and heterosexuals as it relates to everything except for spouses and the children of same-sex partners.

In section (a), items 1, 2, 4 already apply to gay employees, and they are covered by items 3, 5, and 6 as it relates a son, or daughter (assuming they are the birth or adoptive parent), leaving the only issues being the definition of “spouse” and parental relationship of a same sex spouse or partner to a son, daughter, or service member. Parent-in-law’s are explicitly not covered under the law, so gay employees are currently covered exactly the way heterosexual employees are covered as it relates to parents – they must be their actual parents, either natural or adoptive.

If the intent is to extend coverage to gay employees for “newborns or loved ones,” that only would only seem to apply to newborns that they are not biological or adoptive parents of (specifically children of non-recognized same-sex spouses), or “loved ones” which presumably means non-recognized same-sex spouses.

Given that no details of The Department of Labor’s “new interpretation of the law” are provided we’re left to assume that the only way to force equal treatment under the act is to include same-sex partners in the definition of “spouse.”

There’s one gigantic problem with such a reinterpretation. The Defense of Marriage Act

Definition of ‘marriage’ and ‘spouse’:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

That would seems to be deal breaker, but presumably DOL is aware of this provision of DoMA and think they can bypass or ignore it.

Remember, the plan is to make this change without consulting Congress…

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