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Right to Marriage for Same-Sex Couples—“Equality, Dignity in the Eyes of the Law”

By Charles O. Thompson and Garrett C. Parks

In the most anticipated decision of the year, the United States Supreme Court ruled 5-4 that the 14th Amendment guarantees same-sex couples the right to marry.  The decision, penned by swing-vote Justice Anthony Kennedy, held that marriage is a fundamental right and “couples of the same-sex may not be deprived of that right and that liberty.”

The case, Obergefell v. Hodges, involved couples challenging same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee.  The Sixth Circuit Court of Appeals, which hears challenges to laws in those states, upheld the bans on grounds of tradition and the “distinctiveness” of opposite-sex marriage.

Rejecting these contentions, Justice Kennedy wrote: “far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.”  The decision was anchored to four premises regarding marriage: (1) personal choice regarding marriage is inherent to individual autonomy; (2) precedent establishes that the right to marry is fundamental as it supports the importance our society puts on two-person unions; (3) it safeguards children and families; and (4) it is a keystone to the order of our society, of which “there is no difference between same- and opposite-sex couples.”

Same-Sex Marriage and Employers

The landmark decision will impact employers across the nation.  Employers will no longer be required to maintain state-by-state policies and procedures reflecting what had been a patchwork of different, oftentimes contradictory, state laws.  Moving forward, employers have a clear mandate regarding the treatment of same-sex couples.  From guaranteeing same-sex spouses access to benefits to revising discrimination policies, employers will face challenges and opportunities to conform their businesses to the new state of the law. We will keep you apprised as these policies evolve. A few examples include:

  • Family and Medical Leave Act (FMLA): FLMA guarantees employees leave to care for spouses, which now includes same-sex couples.
  • Benefits: Employer-provided benefits plans now must be offered to same-sex couples.
  • Sexual Orientation/Marital Discrimination: Depending on state laws regarding discrimination on the basis of sexual orientation and marital status, employers must be mindful and review their policies to ensure compliance with the new law.
  •  Taxes: Employers should be prepared to handle revised W-4 filings for employees who now have the right to get married and update their tax filing status.
  • Spousal Privilege/Confidentiality: Married same-sex spouses are now afforded the same rights to their spouse’s confidential communications, to refuse to testify in court against their spouse, and to be privy to the contents of confidential settlement or severance agreements entered into by their spouse.

We will continue to monitor the impact of the same-sex marriage decision on employers at the state level and across the Nation.