The Employer's Legal Resource: Supreme Court Rules That Constitution Protects Same Sex Couples' Fundamental Right To Marry


As you have likely heard, on Friday the Supreme Court ruled in favor of gay marriage. All 50 states must now issue marriage licenses to same sex couples. In Obergefell v. Hodges, the Court reviewed the constitutionality of statutes from four states -- Michigan, Kentucky, Ohio, and Tennessee -- that define marriage as between a man and a woman. The Supreme Court's review was focused on two questions: (1) whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex; and (2) whether the Fourteenth Amendment requires a State to recognize a same sex marriage licensed and performed in another State and legal under that State's laws. The Supreme Court answered "yes" to both questions.

Justice Anthony Kennedy (appointed by President Reagan) issued the Supreme Court's majority opinion in a split 5-4 decision. Justice Kennedy recognized the "transcendent importance of marriage," which it said arises "from the most basic human needs" and "is essential to our most profound hopes and aspirations." The Court acknowledged the history of marriage, existing for millennia and across civilizations and faiths, as always between a man and a woman. However, various developments in the institution of marriage over the past two centuries has "worked deep transformations in its structure, affecting aspects of marriage long viewed by many essential." Justice Kennedy explained

that these new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

This dynamic can be seen in, but is not limited to, the rights of gays and lesbians. The state officials involved in this case, and other critics of same sex marriage, have argued that it would "demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex." The Court concluded, however, that "far from seeking to devalue marriage," the same sex spouses in this case "seek it for themselves because of their respect -- and need -- for its privileges and benefits."

James Obergefell married his partner, John Arthur, two years ago -- after the couple had been together for more than twenty years and Arthur was diagnosed with ALS. The couple lived in Ohio, but traveled to Maryland, where same sex marriage was legal, in order to get married. Arthur was so ill at the time and largely unable to move, so their marriage ceremony took place inside a medical transport plane on the tarmac in Baltimore. Arthur died three months later and Obergefell brought suit to be shown as the surviving spouse on Arthur's death certificate, which Ohio law did not permit. April DeBoer and Jayne Rowse celebrated their commitment to one another in a ceremony in 2007. Since that time, the couple added three children to their family: a baby boy they fostered and then adopted; a second son born prematurely and abandoned by his biological mother, who required around-the-clock care; and a baby girl with special needs. Michigan, where the family live s, permits only opposite sex married couples or single persons to adopt, so each of their children can have only one of the women as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the children as if they had only one parent, and if tragedy were to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. DeBoer and Rowse seek "relief from the continuing uncertainty their unmarried status creates in their lives" and the lives of their children. Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura were married in New York in 2011 before DeKoe was deployed to Afghanistan. After DeKoe returned from his yearlong deployment, the couple relocated to Tennessee, where DeKoe works for the Army Reserve. Although DeKoe "served this Nation to preserve the freedom the Constitution protects," he and Kostura "must endure a substantial burden" because "their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines." Justice Kennedy noted that all of their "stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses' memory, joined by its bonds."

The Court's Analysis of Same Sex Marriage as a Fundamental Constitutional Right

The Supreme Court ruled that the Fourteenth Amendment requires States to license same sex marriages under the same terms and conditions as opposite sex marriages. The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law."

Although it has not previously addressed the issue with regard to same sex couples, the Supreme Court has long held that the right to marry is fundamental under the Due Process Clause and protected by the Constitution. Justice Kennedy cited previous cases that invalidated bans on interracial unions, abrogated laws prohibiting fathers who were behind on child support from marrying, and overturned regulations limiting the privilege of prison inmates to marry, and reflected that "[i]n defining the right to marry, these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond." In assessing whether the "force and rationale" of these cases apply equally to same sex couples, the Court considered "the basic reasons why the right to marry has long been protected," and ultimately concluded that same sex couples may exercise the right to marry because "the reasons marriage is fundamental under the Constitution apply with equal force to same sex couples."

The Court based its analysis in this regard on consideration of four principles and traditions. The first premise 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." In fact, the Supreme Court explicitly noted in a previous case that "it would be contradictory to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." The second principle considered by the Court 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." Justice Kennedy noted that "the right to marry thus dignifies couples who wish to define themselves by their commitment to each other" and same sex couples have the same right as opposite sex couples to enjoy that intimate association.

The Court's 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." "By giving recognition and legal structure to their parents' relationship," marriage allows children of same sex couples "to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives" and "marriage also affords the permanency and stability important to children's best interests." The Court explained that

excluding same sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same sex couples.

Justice Kennedy explicitly noted, however, that the right to marry is not any less meaningful for those who do not or cannot have children. "An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childrearing is only one."

The Court's fourth and final justification for finding that marriage is a fundamental right for same sex couples, which garners the most discussion, is that previous cases and "the Nation's traditions make clear that marriage is a keystone of our social order." Justice Kennedy noted that "this idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential." The Court explained:

just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. Valid marriage under state law is also a significant status for over a thousand provisions of federal law The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

There is no difference between same and opposite sex couples with respect to this principle, the Court noted; while the State continues to "make marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians [and] locks them out of a central institution of the Nation's society," imposing stigma and injury of the kind prohibited by the Constitution. Justice Kennedy proclaimed that "the limitation of marriage to opposite sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest." He continued:

If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied….The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

The parties opposing same sex marriage in this case argued that Obergefell and his fellow same sex spouses "do not seek to exercise the right to marry but rather a new and nonexistent right to same sex marriage." The Court rejected that argument, noting that it was inconsistent with the approach the Court has used in discussion other fundamental rights, including marriage and intimacy. As the court forcefully explained, previous cases of pertinence did not ask about the limited questions of a "right to interracial marriage," a "right of inmates to marry," and a "right of fathers with unpaid child support duties to marry." "Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right." The Court found that there was no sufficient justification to exclude same sex couples from the right to marry and thereby receive the same legal treatment as oppo site sex couples. It would "disparage their choices and diminish their personhood" to deny them this right under the Due Process Clause of the Fourteenth Amendment.

Requiring States to Recognize Same Sex Marriages from Other States

The Supreme Court's decision further clarified that the Fourteenth Amendment also requires all States to recognize same sex marriages validly performed in another State. Justice Kennedy noted that "being married in one State but having that valid marriage denied in another is one of the most perplexing and distressing complications in the law of domestic relations" and stated that allowing this paradoxical status quo to continue "would maintain and promote instability and uncertainty," especially "in light of the fact that many States already allow same sex marriage -- and hundreds of thousands of these marriages already have occurred -- the disruption caused by the recognition bans is significant and ever-growing." Because the Court previously concluded that all States are required by the Constitution to issue marriage licenses to same sex couples, the existing "justifications for refusing to recognize those marriages performed elsewhere are undermined." Following the Supreme Court's decision, "since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character."

Immediate Application of the Court's Ruling

The Court advised that its ruling should be effective and applied immediately, and States should not wait to issue same sex marriage licenses pending further legislative or regulatory enactments. "Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage." This would void the nature of a fundamental right and render the Court's decision meaningless.

What Does this Mean for Employers?

Although none of the cases involved in the Obergefell decision are employment related, the Supreme Court's ruling nonetheless implicates various employment laws, including those related to employee benefits, leaves of absence, and discrimination. Much of what employers provide and are mandated to provide to employees may change to include same sex couples.

Following the Supreme Court's recognition of same sex marriages as constitutional, employers can likely expect more lawsuits under Title VII of the Civil Rights Act of 1964. Title VII does not currently prohibit discrimination based on sexual orientation, gender identity, and/or marital status, but employees and advocacy groups may urge courts (and legislators) to expand protection of Title VII to include these classifications and treat them on the same footing as race, religion, and gender. Considering the equal protection and due process grounds relied upon in Obergefell, it seems possible that legal challenges could be pursued on these grounds in the courts, seeking to encompass LGBT individuals under Title VII's existing umbrella of protection. Federal legislation known as the Employment Non-Discrimination Act (ENDA), which in its current form would ban discrimination based on sexual orientation and gender identity in the workplace and in other arenas, h as been introduced in Congress for over two decades, but has failed to pass. Although the ENDA has languished in the legislature for many years, the Supreme Court's decision in Obergefell may reignite interest in or support for this and similar legislation on both the federal and state level, but these efforts may take months or years to be enacted. Last year, President Obama (by Executive Order) barred discrimination based on sexual orientation and gender identity by federal agencies and federal contractors. Currently, 22 states and the District of Columbia have passed legislation that prevents workers from being fired because they are gay or lesbian; the remaining 28 states (including Oklahoma) do not have laws prohibiting discrimination in the workplace based upon LGBT status.

The Department of Labor updated its regulations in March of this year and modified the FMLA's definition of "spouse" to include same sex marriages valid in the state where they were entered. Several states refused to enforce this regulation and cases were pending. However, the Supreme Court's decision validates the DOL's revised definition of "spouse," and employers must afford FMLA rights to eligible employees in same sex marriages, regardless of where the marriage was performed or where the employee resides. Employers must verify that they are complying with the new regulations and granting all eligible employees in same sex marriages their full rights under the FMLA. Employers can expect that the DOL will issue additional guidance in light of the Supreme Court's ruling in the coming weeks or months.

Medical insurance coverage and taxes will change, so employers should be prepared to accommodate such changes in their policies and contracts. The state income tax withhold rate and treatment of employer provided benefits may change for individuals with same sex spouses, and while further guidance will be needed, it will eventually be unnecessary for employers to continue to calculate imputed income. The IRS will likely issue guidance on the tax implications of the Supreme Court's decision soon. This will allow for consistent administration in all states in which an employer operates (and likely save employers money in benefit administration costs). Because same sex couples have not had equal access to benefits or equal treatment in taxation across multiple state and federal laws, many employers have had to set up and manage separate systems to manage benefits and calculate taxes. Having two sets of rules not only drives up benefit costs but also causes companies to pay extra to educate payroll administrators and human resources personnel.

Employers are also well advised to update their employee handbooks to reflect and extend the rights given to opposite sex spouses to same sex spouses as well, in an effort to minimize potential litigation risks. Policies and benefit plans should use gender neutral language when referring to employee spouses.

Employers who currently offer same sex healthcare coverage should be able to streamline their benefits administration, while those employers who do not offer coverage for same sex spouses may have to make changes to do so. Employers will need to modify enrollment processes and create or modify consent and eligibility forms. Employers that offer spousal health benefits and use a separate insurance company to fund those benefits will now be required to cover both opposite sex and same sex spouses. However, companies that are self-insured are not under the same legal constraints, and it remains an open question as to whether the Supreme Court's decision directly impacts a self-insured employer's decision not to provide health coverage to same sex spouses (because state law does not apply to such plans). Self-insured benefit plans may not technically be required to offer coverage to same sex spouses and, at least in theory, employers may be able to craft plans for employees that do not give identical benefits to same sex spouses as they give to opposite sex spouses. Similarly, faith based employers that are religiously opposed to same sex marriage may not be forced to give identical employee benefits to same sex spouses. (The Supreme Court explicitly noted in its decision that "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 extent of an employer's ability to exercise religion in ways that conflict with the new right to same sex marriage is not yet clear, however, and will likely be the subject significant litigation in the near fut ure.) However, there may be heightened risks for any benefit plan that defines "spouse" in a manner inconsistent with federal or state law, particularly since the Supreme Court held that marriage is a fundamental right under the Constitution, and an ERISA preemption defense would likely be weaker in this new climate. Self-insured employers should therefore carefully consider any decision to deny benefits to same sex spouses because they may be vulnerable to discrimination suits. Some employers may elect not to offer any spousal benefits whatsoever if they are looking to cut costs or if they want to deny coverage to same sex spouses without exposing themselves to potential liability.

With regard to federally regulated benefits such as qualified retirement plans and Code Section 125 benefits (such as flexible spending accounts), the Supreme Court's decision does not necessarily warrant any change, since those plans have been required, since the Supreme Court's 2013 decision in U.S. v. Windsor, to recognize same sex spouses.

Generally speaking, employers considering immediate policy revisions based on the fact that same sex marriages are now legal in every state should proceed cautiously. Obergefell is not even one week old and its implications are not fully understood. This article was designed to explain the reasoning behind the Court's decision and to introduce you to the multitude of ways in which it will touch upon an employer's world.

By Rebecca D. Stanglein,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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