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Same-Sex Marriage Decision: Uniformity in All States

Two years to the day after issuing its historic U.S. v. Windsor and Hollingsworth v. Perry decisions (see "New Employee Benefits Rules for Some Same-Sex Marriages"), on June 26, 2015 the United States Supreme Court ruled in Obergefell v. Hodgesthat all states must issue marriage licenses to same-sex couples, and must recognize same-sex marriages performed lawfully in other states. With this landmark decision, the Court guaranteed to all people the fundamental right to marry, regardless of sexual orientation.

While the full impact of the decision will unfold over time, it is clear now that once the Obergefell holdings are fully implemented, employers will no longer need to navigate a patchwork of state laws pertaining to the marital rights of same-sex couples as they design and implement leave rights, benefits, and other practices implicating marital status.

Obergefell v. Hodges

Issues Before the Court

Obergefell was a consolidation of four cases brought in United States District Courts in Michigan, Kentucky, Tennessee and Ohio by same-sex couples and individuals whose same-sex partners had died, who claimed that the states' marriage bans and laws barring recognition of their same-sex marriages performed in other states violated their rights under the Fourteenth Amendment of the United States Constitution. The District Courts ruled in the plaintiffs' favor, but the United States Court of Appeals for the Sixth Circuit consolidated the cases and reversed. The Supreme Court granted review to address two key issues: 1) whether the Fourteenth Amendment requires a state to issue licenses for marriage between two people of the same sex; and 2) whether the Fourteenth Amendment requires states to recognize a same-sex marriage licensed and performed in a different state which does grant that right.

Same Sex Marriage is a Fundamental Right Under the United States Constitution

First addressing the validity of state marriage bans, the 5-4 majority reversed the Sixth Circuit and held that the Fourteenth Amendment guarantees same-sex couples the right to marry under the Amendment's Due Process and Equal Protection Clauses. Exploring due process, the Court discussed four "principles and traditions" demonstrating that marriage is a fundamental right for both same-sex and opposite-sex couples: 1) the right to personal choice regarding marriage is inherent in the concept of individual autonomy; 2) marriage supports a two-person union "unlike any other" in its importance to committed individuals; 3) marriage safeguards children and families — and children of same-sex couples are harmed and humiliated by their parents' exclusion from marriage; and 4) as the keystone of our social order, marriage is the basis for an expanding list of governmental rights, benefits and responsibilities (such as taxation, inheritance and property rights, rules of intestate succession, and many others), noting:

As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society.

The Court found further support in the Equal Protection Clause, finding that the marriage bans "abridge central precepts of equality" where same-sex couples are denied all of the benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Thus, same-sex couples cannot be deprived of this fundamental right, and may exercise the right to marry in all states. In light of its ruling that same-sex couples must now be allowed to marry nationwide, the Court noted that there can be no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state, and swiftly ruled that state same-sex marriage recognition bans are also unconstitutional.

Are there Practical Implications for Employers?

With Obergefell, employees in states formerly banning same-sex marriage will now have the right to marry their same-sex partner, in-state, and their marriages will be afforded the full faith and credit afforded to opposite-sex couples. The full impact of this monumental ruling in the workplace remains to be seen. We do know, however, that it will provide much-needed continuity for companies with multi-state offices and workforces who were required to stay abreast of varying state same-sex marriage rights — even where trying to provide equal rights to all married couples.

For instance, once state marriage bans are lifted, any question regarding same-sex spousal leave benefits under the FMLA in all states should be moot. Although the Department of Labor modified its rules to make validly married same-sex couples eligible for spousal leave under the FMLA regardless of where they live (see "FMLA Expanded To Include All Same-Sex Married Couples"), it was enjoined from applying this rule at least in the states of Texas, Arkansas, Louisiana, and Nebraska by a Texas District Court this past March. As a result, employees in same-sex marriages and working for the same company could potentially have different spousal leave entitlements. Because the states' same-sex marriage and marriage-recognition bans formed the basis of the injunction, on June 26 the Texas District Court dissolved the preliminary injunction, relying on Obergefell. Even though the case is still proceeding, it seems unlikely that a challenge to FMLA spousal leave entitlements for same-sex married couples could succeed in any state.

Employers should also consider whether Obergefell impacts other leave policies, benefits plans, and other practices and policies. In some states, employees in same-sex marriages who were not formerly deemed "spouses" under state law will now be deemed "spouses," and compliance with laws that implicate marital status will require employers to treat same-sex spouses the same as opposite-sex spouses. Additionally, the state tax implications of certain benefit policies may also change in states where same-sex marriage was formerly banned, and employers in such states should be prepared to address these issues with employees who are in or seeking to enter a same-sex marriage.

Notably, Obergefell does not change the fact that sexual orientation is not (yet) a protected class under Title VII of the Civil Rights Act of 1964. However many states and municipalities protect against discrimination on the basis of sexual orientation and gender identity, and federal contractors are likewise now prohibited from discriminating against employees on the basis of sexual orientation and gender identity.

© 2019 Schiff Hardin LLP

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About this Author

Julie Furer Stahr, Employment Related Matters, Schiff Hardin Law Firm
Partner

Julie Furer Stahr is an experienced litigator and counselor representing management in a broad range of employment-related matters in state and federal court and administrative agencies, including:

  • Discrimination against race, gender, religion, national origin, age and disability
  • Sexual harassment
  • Retaliation
  • Defamation
  • Public policy violations
  • Breach of contract
  • Claims involving restrictive covenants and trade secrets...
312-258-5689
Nora Kersten Walsh, Employment Law Litigator, Schiff Hardin Law Firm

Nora Kersten Walsh concentrates on all areas of labor and employment law, with an emphasis on employment-related litigation and employee counseling.

She has conducted federal and state court litigation, including appellate litigation, and has participated in hearings before:

  • The Equal Employment Opportunity Commission (EEOC)
  • Illinois Department of Human Rights
  • Chicago Commission on Human Rights, the National Labor Relations Board (NLRB)
  • State unemployment compensation tribunals

Ms. Kersten Walsh also provides input on labor and...

312-258-5530