By Lynn Kappelman, Laura Maechtlen, Sam Schwartz-Fenwick and Michael Stevens


Today, the U.S. Supreme Court heard oral argument on two questions regarding the Constitutionality of state laws limiting marriage to opposite-sex couples. In 2013, the Supreme Court side-stepped the issue when it dismissed Perry v Hollingsworth on standing grounds. In 2013, the Court also ruled in United States v. Windsor that the Federal government must extend Federal rights and benefits to legally married same-sex couples. The Windsor decision set in motion a sea-change in the law, and presently thirty-seven states and the District of Columbia recognize marriage equality.

Today, the Court heard arguments on four consolidated cases presenting two questions: first, whether the Constitution requires the states banning same-sex marriage to issue marriage licenses to same-sex couples; and second, whether those states must recognize same-sex marriages performed elsewhere. If the Court decides the first question and recognizes a constitutional right to marry, same-sex marriage will be legal in all 50 states, and the Court will not need to decide the second question.

A more complicated scenario could emerge if the Court finds that the Constitution does not guarantee all same-sex couples the right to marry and upholds these state bans, but requires the states to recognize same-sex marriages performed elsewhere. Under those circumstances, the legal status of a same-sex couple’s marriage would depend on where the marriage was performed. Further, a holding that the Constitution does not guarantee same-sex couples the right to marry may permit states, whose marriage bans were struck down by lower courts, to argue that those bans should be given full effect on a prospective basis. In other words, the current patchwork of laws would persist (and perhaps become even more inconsistent) if the Court does not find a constitutional right to marry.

Impact on Employers

Presently, multi-state employers are faced with a non-uniform mixture of state and federal law that impacts how they provide same-sex couples benefits and employee protections, and is necessarily based on whether their employees’ same-sex marriages are legally recognized (and in certain cases where their employees reside). If the Supreme Court finds a constitutional right to marry, the remaining marriage bans will be nullified, and employers will be able to conform certain employment policies to cover same-sex spouses. For employees in newly-recognized marriages, these benefits and policies may include those governed by the following laws:

  • The Employee Retirement Income Security Act (“ERISA”), which provides certain protections to spouses (e.g., a spouse is a beneficiary under retirement plans unless the spouse consents to another beneficiary);
  • The Family Medical Leave Act, which provides leave to care for a spouse with a serious health condition;
  • Federal and State tax laws implicating health benefits provided by employers to their employees (generally exempt from the Internal Revenue Code for spousal coverage);
  • COBRA continuation coverage.

Even if the Court recognizes a constitutional right to marry, a curious result will occur in states that do not extend anti-discrimination protections to LGBT individuals: gay individuals will be able to lawfully wed, but their employers will still be able to fire them because their LGBT status is not protected under state or federal law. While the instant decision will not resolve this issue, the language the Court uses in its opinion may signal whether the Court is willing to open the door to the argument that Federal anti-discrimination laws protect LGBT individuals.

If the Court decides the issue narrowly (e.g., by finding that marriage bans fail rational basis scrutiny as an impermissible form of animus), then the impact of the decision may be limited to marriage equality. However, if the Court finds that laws targeting LGBT people are subject to heightened scrutiny, then the impact could be wider. Such an expansive ruling from the Court could buttress that position (increasingly argued by the Plaintiffs’ bar and the EEOC) that LGBT discrimination is a form of sex discrimination, and is thus barred under Title VII.

If the Court does not recognize a right to marry, but requires states to recognize same-sex marriages performed elsewhere, employers may then have to examine the wedding licenses for their same-sex employees to ensure that the marriage took place in a state where the marriage was legal. This administrative burden is likely de minimis, given that most employers already require proof of marriage before extending spousal benefits to an employee’s spouse. The greater burden is on employees who may lack the resources necessary to travel out of state to marry.

Because there are two separate questions before the Court, and the Court could decide the issue in a number of different ways, it is difficult to project the precise impact of the decision (on both same-sex couples and employers) before it is rendered. Stay tuned because Seyfarth will update this analysis once the opinion is issued, and we anticipate that will happen at the end of the Court’s term in June.