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A Landmark Decision: Same Sex Marriage Legal. What Does It Mean for Employers?

The U.S. Supreme Court issued its decision in Obergefell v. Hodges and held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. The landmark decision renders any state law bans on same-sex marriage unconstitutional and paves the way to equality for same-sex spouses in those states.

In essence the Court’s opinion will force those states that either had not already invalidated their constitutional bans on same-sex marriage or already recognized same-sex marriages as legal to be consistent with all of the states who already had.  Employers in these states will need to respond accordingly.

What does all this mean for employers?  Some items employers will need to address will be:

  • Amending plan documents, policies and procedures manuals, handbooks or other communications that had differentiated or excluded same-sex spouses or limited their rights under any company policy or plan of benefits;
  • Not requiring any other proof of marriage other than a valid marriage license;
  • Not treating same-sex spouses differently from a tax perspective (i.e., not imputing income because such individuals are not dependents for state tax purposes); and
  • Recognizing existing same-sex marriages performed in another state where such marriages were legal.

The decision does not transform existing domestic partnerships or civil unions into marriages, nor does the opinion address domestic partners or what employers’ responsibilities are to domestic partners.   Employers should continue to address domestic partnership issues as they currently do unless and until future action by states or municipalities might alter domestic partnership laws.

Obergefell v. Hodges arose from cases out of Michigan, Kentucky, Ohio, and Tennessee, all of which defined “marriage” as a union between one man and one woman.  Petitioners asserted that the state laws defining marriage in this way violated the Fourteenth Amendment by denying same sex unions the right to marry or to have their marriages, lawfully performed in another State, given full recognition.

The majority of a sharply-divided Court, (there were an unusual four separate written dissenting opinions), agreed with petitioners.  Justice Kennedy bases the majority opinion on the conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) the right to personal choice in marriage as "inherent in the concept of individual autonomy"; (2) a "two-person union is unlike any other in its importance to the committed individuals"; (3) marriage assures the wellbeing and safety of children and families; (4) marriage is the keystone to our society.  Kennedy writes that these principles and traditions apply equally to same-sex spouses.

The Court began its opinion with a history of marriage, even citing Confucious and Cicero, to illustrate that marriage, as an institution, has long been central to human existence.  The Court also detailed the evolution of marriage through the years, including an abandonment of arranged marriages, coverture and bans on inter-racial marriages, and positions its decision as a logical continuation of that evolution.  The Court reasons that “the limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

The majority recited precedents that applied the Due Process and Equal Protection clauses of the Fourteenth Amendment and concludes that the right to marry is a fundamental right inherent in the liberty of the person, and couples of the same-sex may not be deprived of that right and that liberty.  Justice Kennedy writes, "It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry."

The opinion of the Court will become the law very soon, and states impacted by the decision likely will begin to react to it even sooner.  We will continue to monitor the situation and provide updates as we get more information.