Executive SummaryThe U.S. Supreme Court has held that marriage is a fundamental right, and states must perform and recognize same-sex marriage. See Obergefell v. Hodges (June 26, 2015).  

What this Means for Employers

Uniform state and federal treatment of same-sex spouses

  • Fully-Insured Health and Welfare Plans: Under today's decision, fully-insured plans must extend coverage to same-sex spouses.
  • Self-Insured Health and Welfare Plans: Self-insured plans may continue to use a plan-specific definition of spouse but may be subject to federal and state anti-discrimination claims.
    • Employees have begun successfully litigating the exclusion of same-sex spouses from self-insured plans under federal and state anti-discrimination laws.
    • Recent case law has found that ERISA's preemption provisions may no longer provide protection for the design flexibility once afforded to employers providing self-insured plans. As a result, implementing a definition of "spouse" that is at odds with the state and federal definition may considerably increase a plan's potential exposure to lawsuits under state and federal anti-discrimination statutes, such as Title VII and the Equal Pay Act (EPA).


The Supreme Court heard oral arguments on:

1)    The "marriage" question: Does the Constitution require states to allow same-sex marriages?

Yes. The Court held that there is a constitutional right to marry.

2)    The "recognition" question: Does the Constitution require states to recognize same-sex marriages that legally took place somewhere else?

Yes. The Court held that the Fourteenth Amendment prohibits states from denying the marital status of same-sex couples lawfully married in the state of celebration.

The Court's decision overrules a 6th Circuit decision that upheld state same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee and resolves the inconsistent treatment of same-sex marriage nationwide. In addition to the issues discussed above, today's decision could have a far-reaching impact on state laws. Please stay tuned for a more comprehensive discussion of how this decision may impact employers.