On October 6, 2014, the United States Supreme Court declined to review a decision by the Court of Appeals for the Fourth Circuit which had declared unconstitutional Virginia laws recognizing that only a marriage between one man and one woman would be valid in the Commonwealth of Virginia, even if a same sex marriage had been performed legally in another state.

On October 8, 2014, the Charleston County Probate Court issued a statement that it would now issue marriage licenses to same sex couples. On October 9, 2014, the South Carolina Supreme Court issued an order preventing the issuance of any marriage licenses to same sex couples pending the resolution of a case in the United States District Court for the District of South Carolina testing the validity of South Carolina laws relating to same sex marriage.

The most likely result in the federal case in South Carolina will be a decision following the Fourth Circuit. When that case is resolved, employers most likely will need to update their policies and procedures dealing with any benefits afforded to married employees and their spouses to ensure that those benefits are extended to same sex spouses. Based on the South Carolina Supreme Court’s decision to maintain the status quo, employers in South Carolina should not take immediate action, but should be prepared to take make changes when the current litigation is resolved.

Federal regulations governing employee benefit plans covered by ERISA and health care regulations under HIPAA currently require the provision of benefits to same sex couples.