Supreme Court’s Decision Regarding Marriage Equality May Require Some Employers to Take Immediate Action

07/01/2015 / Phyllis Karasov, Daniel J. Ballintine and Hilda Li

On June 26, 2015, the U.S. Supreme Court, in a 5-4 decision, legalized same-sex marriage nationwide. Fourteen states with bans on same-sex marriage are affected by this decision. Employers with locations in these states (see below) should review and potentially modify policies and benefit plans to ensure compliance with this decision.

Justice Anthony M. Kennedy, writing for the majority in Obergefell v. Hodges, stated that the right to marry stems from the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and is a fundamental liberty everyone has, regardless of sexual orientation. He concluded, “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. ... Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The Obergefell v. Hodges case arose out of four different cases filed in Michigan, Kentucky, Ohio, and Tennessee, states with bans on same-sex marriage. Those states define marriage as a union between one man and one woman. Fourteen same-sex couples and two men whose same-sex partners are deceased filed suits in Federal District Courts in their home states, alleging that state officials violated the Fourteenth Amendment by denying their right to marry and refusing to fully recognize same-sex marriages lawfully performed out-of-state. Each District Court ruled in favor of the same-sex couples, but the decisions were overruled on appeal by the United States Court of Appeals for the 6th Circuit, which consolidated the four cases into one case. The Court of Appeals opined that a state has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out-of-state. The Supreme Court’s majority opinion reversed the decision of the Court of Appeals.

The dissents were strongly opposed to the majority decision. In his dissent, Justice Antonin Scalia argued the decision was a “threat to American democracy.” He went on to say the opinion is “couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.”

Chief Justice John Roberts wrote in his dissent: "If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today's decision. ... Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Justice Alito’s dissent expressed concern about the decision’s effect on the Supreme Court and its ability to uphold the rule of law. “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”

The 14 states affected by the Court’s decision are Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas. Please contact us for any questions on the reviews a company should make for compliance with federal and state laws regarding leave, benefits, or any other employment matter.