A Stitch in Haste

It was obvious from the moment that the New Jersey Supreme Court handed down its decision in Lewis v. Harris instructing the state legislature to fully acknowledge same-sex couples, but allowing it to do so via civil unions, that the "separate but equal" paradigm would be simply unworkable, and that the state's highest court would likely be forced in a subsequent case to issue a mea culpa and require full marriage equality after all.

We may now have that subsequent case:

In a letter outlining why it was denying spousal benefits to Lambda Legal clients and UPS employee Nickie Brazier and her partner Heather Aurand, UPS said, "In summary, you cannot add Ms. Aurand as a spouse because New Jersey law does not treat civil unions the same as marriages, and the Plan requires a dependent spouse to be a spouse as defined under applicable state law."
...
Tom Walton, 42 is also a UPS driver who asked to have his civil union spouse and partner of 15 years with, Mearmon Davis, 44, added to his health care plan and was denied.

Lambda Legal has announced that it is "representing" these couples, but did not indicate whether any litigation has been initiated.

UPS' position, meanwhile, is self-contradicting:

The UPS Health & Welfare Package is an ERISA plan and is governed by federal law. ERISA pre-empts the application of any state law provisions purporting to regulate employee benefits.

And since federal DOMA dictates that there is never, no way no how, such a thing as "same-sex marriage" for purposes of federal law, all the actions by vindicating state courts and sympathetic state legislatures to extend private benefits to gay couples may actually amount to bupkes — even in Massachusetts. This is not new news.

But:

The UPS Health & Welfare Package does provide benefits for an employee's legal spouse as defined by state law. In the event New Jersey or any other state legalizes same sex marriage (e.g., Massachusetts), same sex spouses would be eligible dependents under the Plan.

That doesn't make any sense. UPS is either hiding behind ERISA or it isn't. The holding in Lewis v. Harris is unambiguous: "a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples."

So which is it: Abide by Lewis v. Harris or abide by ERISA? To say, as UPS does, that ERISA blocks partner benefits for New Jersey ("on equal terms") civil unions but not for New Jersey ("DOMA forbidden") same-sex marriages is simply an untenable, incoherent position.

More:

The terms of the Plan are subject to collective bargaining, and UPS cannot unilaterally change Plan provisions outside of the collective bargaining process.

That is a flat-out lie. If a court or a legislature orders equal treatment of same-sex couples, then UPS is going to provide it. The union bosses have no say in the matter. And both a court and a legislature did order it, so why is the subject even being raised?

I suspect that UPS, rather than being wilfully despicable, may simply be receiving some very bad advice by its lawyers, who admittedly are treading into uncharted waters with this clumsy, clunky and wrong civil union paradigm. They will either relent quickly or stand firm. If it's the latter, then separate-but-equal may yet again be deemed inherently unequal by a high court.