Why it matters

How will employers feel the impact of the U.S. Supreme Court’s decision in Obergefell v. Hodges? The landmark ruling that the Fourteenth Amendment guarantees a constitutional right to same-sex marriage in all 50 states will establish uniformity and consistency for employers with a presence in multiple states, as employees may now enter into same-sex marriages in their home state or any other state, and marriages legally performed in any other jurisdiction must be recognized as valid. The 5–4 opinion authored by Justice Anthony Kennedy also validates the Department of Labor’s rule defining “spouse” under the Family and Medical Leave Act to include same-sex partners, even for those states that had obtained an injunction against enforcement of the expanded definition. Employers should consider updating their employee handbooks in light of the decision and may need to tweak various forms and policies to adopt more inclusive terminology. The Court’s recognition of changing social norms could also lead to an uptick in suits based on sexual orientation, gender, transgender, or marital status discrimination under either Title VII or state law.

Detailed discussion

“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 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,” Justice Anthony Kennedy concluded in one of the most highly anticipated decisions of the U.S. Supreme Court’s term.

The Court split 5 to 4 in its opinion, which considered the constitutionality of same-sex marriage in a consolidated case from the Sixth Circuit Court of Appeals. Federal district courts in Kentucky, Michigan, Ohio, and Tennessee had all struck down state laws in those states limiting marriage to a union between one man and one woman. In response, those states had appealed.

After consolidating the cases, which involved a total of 14 petitioners, the Sixth Circuit reversed the lower courts’ decisions. The Supreme Court justices accepted the case for review and, in a split decision which cited both Confucius and Cicero, Justice Kennedy wrote that the “history of marriage is one of both continuity and change.” He went on to hold that 
“[w]hen new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Not only do the Equal Protection and Due Process clauses of the Fourteenth Amendment require all states to perform same-sex marriages, but the Constitution further requires states to recognize same-sex marriages legally performed elsewhere, the majority wrote.

While the dissenting justices did not hold back on their criticisms (Chief Justice John Roberts characterized the majority’s approach as “deeply disheartening,” while Justice Antonin Scalia called the opinion “as pretentious as its content is egotistic”), employers must now ensure they are in compliance with the law as it currently stands.

Many employers have incorporated same-sex marriage concepts into their policies and procedures, particularly in those states where it was already legal. But those companies with a multistate presence, or with offices in states where same-sex marriage was prohibited, should engage in a thorough review of employee handbooks and all policies and procedures to ensure compliance and consistency, with an accompanying update to employee training. For example, the word “spouse” should now recognize same-sex unions (i.e., watch out for gender-specific policies referencing “husband” and “wife”).

Regarding other recent developments in this area, in March a finalized interpretation by the Department of Labor (DOL) expanding the definition of “spouse” under the Family Medical Leave Act (FMLA) took effect. That rule recognized the June 2013 U.S. Supreme Court decision in U.S. v. Windsor that Section 3 of the Defense of Marriage Act—the provision that interpreted “marriage” and “spouse” to be limited to opposite-sex couples for purposes of federal law—was unconstitutional.

Residence was therefore irrelevant for purposes of evaluating the legality of a same-sex marriage under the FMLA, the DOL said, applying a “state of celebration” rule instead. However, four states that did not recognize same-sex marriage—Arkansas, Louisiana, Nebraska, and Texas—filed suit to halt enforcement of the rule and a federal court judge granted a preliminary injunction. Presumably that injunction will terminate in the wake of Obergefell.

Workplace benefits will also be impacted by this decision, from medical insurance coverage to Social Security benefits to tax status. In addition to the DOL, the Internal Revenue Service (IRS) issued guidance after Windsor providing that same-sex marriages should be recognized for purposes of the Internal Revenue Code and the Employee Retirement Income Security Act if they were legally recognized in the state where the marriage was celebrated. As demonstrated by the steps already taken by the DOL and IRS, many federal benefits may already include same-sex marriage. But state law—in particular in the areas of insurance, taxes, and domestic relations courts—will now have to follow.

What else can employers expect? Although Obergefell was not an employment case, the rights recognized by the decision and the sweeping language used by Justice Kennedy in the majority opinion could trigger an increase in lawsuits alleging discrimination based on marital status in states where it is a protected category, such as in California, as well as transgender, sexual orientation, or gender discrimination under either Title VII or related state laws.

To read the opinion in Obergefell v. Hodges, click here.