U.S. Supreme Court: There is a Constitutional Right to Same-Sex Marriage

In a historic 5-4 decision, the U.S. Supreme Court ruled that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of the fundamental right to marry. Obergefell v. Hodges (U.S. 2015). “State laws [banning same-sex marriage] are now held invalid to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” The Court also ruled that the Fourteenth Amendment requires states to recognize same-sex marriages validly performed out of State. Accordingly, same-sex couples may marry in all 50 states and the District of Columbia. Justice Kennedy delivered the opinion of the Court in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Chief Justice Roberts and Justices Scalia, Thomas, and Alito filed dissenting opinions.

For employers, the primary impact will be in regard to benefit administration where greater consistency is now possible, particularly for employers with multi-state operations. Employers in the states that, at the time of this ruling, banned same-sex marriage will need to review their benefit plans, leave of absence policies, and employee handbook policies (e.g., bereavement, conflict of interest)  to determine whether any changes are required, such as expanding coverage to same-sex spouses or using gender-neutral language when referring to spouses. Self-insured plans, which are not subject to state insurance laws, may face greater challenges under federal and state discrimination laws if they offer coverage to opposite-sex, but not same-sex spouses.

The Obergefell decision also will facilitate uniform application of the FMLA to employees with same-sex spouses. On March 27, 2015, the U.S. Department of Labor (DOL) Final Rule took effect. The Final Rule adopted a “place of celebration” rule when defining spouse. By determining spousal status by the jurisdiction in which the couple was married, the DOL Final Rule effectively expanded the availability of FMLA leave to employees requesting leave to care for a same-sex spouse—even if they resided in a state that did not recognize such marriages. A preliminary injunction, however, stayed enforcement of the DOL Final Rule in Texas, Arkansas, Louisiana, and Nebraska. The Obergefell decision likely will expedite the removal of this injunction which will make the DOL Final Rule applicable in all jurisdictions.