Last week, I blogged that SCOTUS, in a 5-4 decision, held that Same Sex Marriage (SSM) is a right protected by the United States Constitution, SSM must be allowed in all 50 states and SSM performed in any state must be recognized in all 50 states.  So, what does that mean for employers in Alabama?

The sky is not falling, and the sun came up on Saturday, the day after the opinion was published.  Likewise, employers continue to employ employees, and work goes on.  However, there are some issues employers need to consider.  These include the following:

  1. Leave polices, including under the FMLA.  Spouses in Alabama are now considered both heterosexual and same sex couples.  If a leave policy references a “spouse”, all spouses are covered.
  2. Tax implications. At the very least, legally married same sex couples are entitled to claim, for state and federal tax purposes, being married for withholding purposes.
  3. ERISA and Employee Benefit plans. These plans, including health insurance, life insurance, disability insurance and retirement plans, when “spouse” is mentioned, includes legally married same sex and heterosexual couples.
  4. Buy/Sell agreements. Agreements that refer to “spouse” now include legally married same sex and heterosexual couples.
  5. Succession Planning. For small and closely held employers, for succession planning purposes, “spouse” now includes legally married same sex and heterosexual couples.  As my partner, Leigh Kaylor, pointed out in her Estate Planning blog post, this decision impacts estate planning for SSM couples or any family that has a family member in a SSM.
  6. The Affordable Care Act (Obamacare). The ACA recognizes both SSM and traditional marriages.  (This has been the case since the Windsor decision from 2013, and is just a reminder in light of last week's other big SCOTUS case on the ACA.)
  7. SSM Discrimination.   Although same sex discrimination is currently not unlawful under Alabama law, Federal Contractors are prohibited from such discrimination.  I anticipate that the EEOC will continue to aggressively pursue same sex discrimination, and use the Obergefell decision to support its arguments.
  8. COBRA. SSM couples now have the same COBRA benefits as opposite-sex married couples have.

Practice pointers.  Since January 1st, there have been numerous changes that impact employers. This is just another one of those changes.

For those who are interested in reading the entire Obergefell decision, it can be found here.  It is long, at times amusing, with some antagonistic dissents.  Some of the highlights from:

Justice Kennedy's majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan:

  1. “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.  The petitioners in these cases seek to define that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”
  2. “Under the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty or property, without due process of law.'  The fundamental liberties protected by this Clause, include most of the rights enumerated in the Bill of Rights…In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”
  3. “A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy…Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.”
  4. “A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
  5. “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
  6. “Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order.  Alexis de Tocqueville [wrote]…

‘There is certainly no country in the world where the tie of marriage is so much respected as in America…[W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace…[H]e afterwards carries [that image] into public affairs'.

  1. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.  Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
  2. “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and liberty.  The Court now holds that same-sex couples may exercise the fundamental right to marry.”
  3. “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.  The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.  The same is true of those who oppose same-sex marriage for other reasons.  In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.  The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
  4. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.  In forming a marital union, two people become something greater than once they were.  As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to a 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.”

Excerpts from Justice Roberts' dissent, joined by Justices Scalia and Thomas:

  1. “Many people will rejoice at this decision, and I begrudge none of their celebration.  But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening…Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
  2. “But as this Court has been reminded throughout our history, the Constitution ‘is made for people of fundamentally differing views.'”
  3. “It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.  The Constitution leaves no doubt about that answer.”
  4. “Stripped of its shiny rhetorical gloss, the majority's argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and society.  If I were a legislator, I would certainly consider that view as a matter of social policy.  But as a judge, I find the majority's position indefensible as a matter of constitutional law.”
  5. “One immediate question invited by the majority's position is whether States may retain the definition of marriage as a union of two people…..Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.  Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.  If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
  6. “Those who founded our country would not recognize the majority's conception of the judicial role.  They after all risked their lives and fortunes for the precious right to govern themselves.”
  7. “When decisions are reached through democratic means, some people will inevitably be disappointed with the results.  But those whose views do not prevail at least know that they have had their say, and accordingly are-in the tradition of our political culture-reconciled to the result of a fair and honest debate.  In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again.  ‘That is exactly how our system of government is supposed to work.'”
  8. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice.  The majority's decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to ‘advocate' and ‘teach' their view of marriage…The First Amendment guarantees, however, the freedom to ‘exercise' Ominously, that is not a word the majority uses.”
  9. “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage-when, for example a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.  Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.”
  10. “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 achievement of a desired goal.  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.”

Excerpts from Justice Scalia's dissent, joined by Justice Thomas:

  1. ”It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today's opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States…[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.'”

  1. ”This is a naked judicial claim to legislative-indeed super-legislative power; a claim fundamentally at odds with our system of government.”
  2. ”And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to isolate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
  3. ”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.”
  4. ”Hubris is sometimes defined as o'erweening pride; and pride, we know, goeth before a fall.  The Judiciary is the ‘least dangerous' of the federal branches because it has ‘neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm' and the States, ‘even for the efficacy of its judgments.'  With each decision of ours that takes from the People a question properly left to them-with each decision that is unabashedly based not on the law, but on the ‘reasoned judgment' of a bare majority of this Court-we move one step closer to being reminded of our impotence.”

From Justice Thomas' dissent, joined by Justice Scalia:

  1. ”Petitioners cannot claim, under the most plausible definition of ‘liberty,' that they have been imprisoned or physically restrained by the States for participating in same-sex relationships.  To the contrary, they have been able to cohabitate and raise their children in peace.  They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States.  They have been able to travel freely around the country, making their homes where they please.  Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.”
  2. ”Instead, the States have refused to grant them governmental entitlements.  Petitioners claim that as a matter of ‘liberty,' they are entitled to access privileges and benefits that exist solely because of the government.”
  3. ”In our society, marriage is not simply a governmental institution; it is a religious institution as well…Today's decision might change the former, but it cannot change the latter.  It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

Justice Alito's dissent, joined by Justices Scalia and Thomas:

  1. ”Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.  The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them.  It does not.  The Constitution leaves that question to be decided by the people of each State.”
  2. ”Today's decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.  It will be used to vilify Americans who are unwilling to assent to the new orthodoxy.  In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women…The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”
  3. ”Most Americans-understandably-will cheer or lament today's decision because of their views on the issue of same-sex marriage.  But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends.”

Of course, only time will tell if the predictions in the dissenting opinions will come true.  From a legal perspective, from a societal perspective, and from an employer's perspective, it will be an interesting journey.