On June 26, 2015, in the Obergefell v. Hodge, et al. case, the U.S. Supreme Court held that: (i) all states must permit marriages between same-sex couples; and (ii) all states must recognize marriages of same-sex couples performed in other states. The U.S. Supreme Court held that the right to marry is a fundamental right and applies equally to both opposite sex and same-sex couples. Prior to this decision, Texas (along with thirteen other states) prohibited same-sex marriages. While many in the Texas legislature and executive branch have decried the U.S. Supreme Court’s ruling, the decision effectively overrules prohibitions against same-sex marriages and mandates that Texas (and the other thirteen states) must recognize same-sex marriages.

The Obergefell decision has potential implications for Texas-based employers. At this time, the full scope of the implications is still unknown. However, at a minimum, it appears that employers will be required to expand many types of benefit coverages to same-sex marriage partners. Therefore, employers should review forms and policies related to tax reporting, health care insurance, compliance with the Family Medical Leave Act (“FMLA”), retirement benefits, death benefits and many other standard form documents that are based on the premise that marriage is defined as a union between a man and a woman. It is anticipated that the U.S. Department of Labor and Internal Revenue Service will issue guidance regarding employee benefit plan issues and proper compliance with the law (as they have done in the past when the Supreme Court partially struck down the Defense of Marriage Act as related to federal law in 2013).

The first step in applying the Obergefell ruling in Texas has already occurred. On March 26, 2015, U.S. District Court Judge Reed O’Connor of the Northern District of Texas, Wichita Falls Division entered an injunction preventing the application of FMLA benefits to same-sex couples in Texas, Arkansas, Louisiana and Nebraska. The injunction granted a stay of the application of final rule changes under the FMLA promulgated by the U.S. Department of Labor, where, there was a proposed change of the definition of the term “spouse.” The rule change required states where same-sex marriages were illegal to recognize same-sex marriages performed in states where such marriages were authorized under state law. Under this context, if a same-sex couple living in Texas traveled to and were married in a state recognizing same-sex marriages under state law (e.g., Massachusetts), then Texas employers would be required to recognize the same-sex marriage for FMLA purposes even though the marriage was illegal under Texas law. The injunction temporarily prevented this result. However, on the same day the U.S. Supreme Court issued its opinion in Obergefell, Judge O’Connor dissolved this temporary injunction. Consequently, there is no question that FMLA rights now apply to same-sex couples in Texas.