On the anniversary of two other decisions supporting same-sex rights (Lawrence [pdf] and Windsor [pdf]), the U.S. Supreme Court ruled on Friday, June 26 that same-sex marriage is a fundamental right nationwide. The Court held the Fourteenth Amendment to the Constitution requires a state to issue marriage licenses to same-sex couples and to recognize same-sex marriages performed out-of-state. The 5-4 decision [pdf], styled Obergefell v. Hodges, will be among the most monumental in our lifetimes, eviscerating existing state bans on same-sex marriage, whether imposed by prior judicial decision or legislative action.
Authoring the majority opinion, Justice Anthony Kennedy concluded that the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect a same-sex couple’s right to marry. Justice Kennedy, along with Justices Breyer, Ginsburg, Kagan, and Sotomayor, determined that the right to marry is an “interest[ ] of the person so fundamental that the State must accord [it] its respect.” Finding the concepts of marriage, and, indeed, liberty, have changed (and will continue to change) over time, the majority articulated four principles demonstrating why marriage has become a fundamental constitutional right applying with equal force to same-sex couples:
- The right to personal choice regarding marriage is inherent in the concept of individual autonomy, as noted in a prior marriage case, Loving v. Virginia.
- The right to marry is fundamental because “it supports a two-person union unlike any other in its importance to the committed individuals.”
- Marriage promotes stability and family life, while protecting children of same-sex couples against uncertainty and the “stigma of knowing their families are somehow lesser.”
- Marriage is a “keystone” of America’s social order, as shown by “the constellation of benefits that the States have linked to marriage.”
The fourth principle connects the constitutional issue of same-sex marriage to employment law. As Justice Kennedy points out, marital status affects access to many governmental programs, including workers’ compensation benefits and health insurance. Commentators are already pointing out that “the 77 percent of companies currently offering same-sex healthcare coverage should be able to streamline their benefits administration, while those not currently offering coverage to same-sex employees may have to make changes to do so.” Furthermore, Family and Medical Leave Act benefits will likely now apply to all couples, regardless of state of residence.
Although the Court’s decision did not specifically address any employment-related issues, now that same-sex marriage has been ruled lawful, employers would be well-served to review their policies – particularly with respect to benefits and leaves of absence – to ensure that they reflect this new reality.