Tuesday, July 3, 2007
Judge Nancy Gertner, of the District Court of Massachusetts, has sent us a request for amicus participation in a case before her. The case is Massachusetts Nurse Assoc. v. Essent Healthcare of Massachusetts, Inc.
Here is a brief summary of the facts:
In this case, a Massachusetts-based employer has extended health insurance benefits, under an ERISA-covered employee welfare plan, to “legal spouses” of employees, but has expressly limited that coverage to legal spouses “of the opposite sex.” This policy was the subject of arbitration between the employer and a labor organization representing employees at the employer’s workplace. The arbitrator determined that the policy does not violate the terms of a collective bargaining agreement in place between the employer and the labor organization. The case comes to the Court on appeal from the arbitrator’s decision.
The courts poses two question to potential amici:
1. Is there is a “clear public policy” against sexual preference discrimination and/or in favor of same-sex marriage in Massachusetts, that meets the standards of Eastern Associated, 531 U.S. at 62, and if so, what are its sources in positive law, i.e. regulations, statutes, constitution, jurisprudence?
2. Is that state public policy – if it exists – preempted by the breadth of ERISA preemption? 29 U.S.C. § 1144(a). Is there any difference in the reach of the
ERISA preemption clause when it is applied to an area - marriage - that is traditionally a core area of state authority, as compared to when it is applied to preempt state laws concerning other forms of discrimination, as in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983),
Air Transp. Ass'n of Am. v. City & County of San Francisco, 992 F. Supp. 1149, 1172 (N.D. Cal. 1998), or Catholic Charities of Me., Inc. v. City of Portland, 304 F. Supp. 2d 77, 90-93, 96 (D. Me. 2004). Can ERISA preempt a provision of a state constitution?
Amicus briefs are due August 1, 2007. The full Request for Amicus Briefing is here.