Effect of Supreme Court’s Denial of Review of Same-Sex Marriage Cases

As many MSEC members are aware, last week the U.S. Supreme Court declined to rule on the constitutionality of state laws that prohibit same-sex marriage. The Court rejected a request to review seven total rulings from the Fourth, Seventh, and Tenth federal circuit courts of appeals on the issue. In each instance, the lower courts found that state law bans on same-sex marriage were not constitutional. However, the rulings were stayed pending potential Supreme Court action. Given that such action is not forthcoming, the lower courts’ rulings are now essentially in effect.

The impact of these decisions for employers cannot be overstated. States such as Colorado, Kansas, North Carolina, South Carolina, West Virginia, Wyoming, Virginia, Indiana, Wisconsin, Oklahoma, and Utah are now legally subject to circuit court of appeals decisions that invalidate same-sex marriage bans. Many of these states have begun issuing marriage licenses to same-sex couples.

If an employee was not previously married to a same-sex spouse in a state that recognized same-sex marriage, employers may be required to allow employees to enroll those spouses in benefits. Changes include implications for taxability of employer-sponsored health care, eligibility for health care continuation under the Consolidated Omnibus Budget Reconciliation Act (COBRA), enrollment rights pursuant to the Health Insurance Portability and Accountability Act (HIPAA), cafeteria / flex plan elections, survivor benefits, and reimbursement under flexible spending accounts.

The number of states recognizing same-sex marriages has greatly increased, and, with it, the number of potential employees who can enroll their same-sex spouses in federally regulated benefits.