Now that same-sex couples have the freedom to marry in every state, employers must consider whether plan amendments and administrative changes are necessary.
On June 26, the US Supreme Court issued its landmark decision in Obergefell v. Hodges, ruling that all states must issue marriage licenses to same-sex couples and must also fully recognize same-sex marriages lawfully performed out of state. The 5-4 majority opinion, written by Justice Anthony Kennedy, holds that the right to marry is a fundamental right inherent in the liberty of the person under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the US Constitution and that same-sex couples may not be deprived of that right.
The affirmation of same-sex marriage rights comes exactly two years after the Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, holding that DOMA was a deprivation of same-sex couples’ due process and equal protection rights guaranteed under the Fifth Amendment. The Windsor decision addressed only the issue of whether the federal government must recognize same-sex marriages for federal law purposes if they were valid in the state in which they were performed. It did not address whether states are required to allow same-sex couples to marry or whether states are required to honor same-sex marriages lawfully performed in other states. The Obergefell decision answers both of these questions in the affirmative.
Obergefell is a consolidation of 16 petitioners' cases initially filed separately in federal district courts in each of their home states. The petitioners, 14 same-sex couples and two individuals whose same-sex partners are deceased, filed suits claiming that by denying them the right to marry or by not recognizing their marriages that were lawfully performed in another state, their home states were violating their due process and equal protection rights under the Fourteenth Amendment. Each district court ruled in the petitioners’ favor, but the US Court of Appeals for the Sixth Circuit reversed. The US Supreme Court granted certiorari.
The Obergefell decision extends the freedom to marry to same-sex couples and requires states to fully recognize same-sex marriages legally performed in other states. The opinion was authored by Justice Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Kennedy's opinion for the Court holds that the Fourteenth Amendment's protection of an individual’s right to liberty extends to the right to marry and that state constitutions and laws that refuse to extend this right to same-sex couples deprive them of this protected liberty right without due process. The opinion also identifies the unequal treatment as a violation of same-sex couples' equal protection rights. Chief Justice John Roberts, Jr. authored a dissenting opinion, which was joined by Justices Clarence Thomas and Antonin Scalia. In addition, Justices Scalia, Thomas, and Samuel Alito each wrote separate dissenting opinions, each of which was joined in by one or more of the other dissenting justices. The dissenters' common theme was that the majority created a new national "substantive due process" right to same-sex marriage and, by so doing, foreclosed the ability of the states, through democratic processes, to decide whether to recognize same-sex marriage on a state-by-state basis.
Although the Court's decision in Obergefell settles the issue of the right to same-sex marriage in all 50 states, it creates a number of benefits-related questions for employers and benefit plans to address. In light of the decision, employers and plans should take the following actions:
Please contact any of the following Morgan Lewis lawyers if you have questions about the Obergefell v. Hodges decision and the effect on your employee benefit plans.
Employee Benefits and Executive Compensation
John G. Ferreira
Labor and Employment
Michelle Seldin Silverman
. United States v. Windsor, 133 S.Ct. 2675 (2013), Morgan Lewis’s LawFlash available at http://morganlewis.com/pubs/eb_lf_domaruledunconstitutional_28june13.