By Sam Schwartz-Fenwick and Craig B. Simonsen

Blog picIn another federal action that employers need take note of, last week the U.S. Securities Exchange Commission (SEC) issued its “Commission Guidance Regarding the Definition of the Terms ‘Spouse’ and ‘Marriage’ Following the Supreme Court’s Decision in United States v. Windsor.” SEC Interpretive Release No. 33-9850 (IR) (June 19, 2015), 80 Fed. Reg. 37536 (July 1, 2015).

This IR came out days after the U.S. Supreme Court issued its decision in Obergefell, et al. v. Hodges, Director, Ohio Department of Health. In Obergefell, the Supreme Court, as was noted in a related blog, ruled that “same-sex couples may exercise the fundamental right to marry in all States [and] that 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.”

Obergefell built on the Supreme Court’s prior same-sex marriage ruling in U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013). Windsor, issued in June 2013, held that the due process clause of the Fifth Amendment required the Federal Government to recognize as married, and thus to bestow the Federal rights and benefits of marriage to, legally married same-sex couples.

Subsequent to Windsor, Federal agencies, including the IRS and DOL, issued guidance clarifying whether they would consider a same-sex couple married based on the celebration rule (was the ceremony conducted in a state that recognized same-sex marriage?) or the residence rule (does the couple live in a state that recognizes same-sex marriage?).

In nearly all cases, Federal agencies determined that benefits would be determined based on the celebration rule. In accord with the majority rule, the SEC has adopted a celebration rule for defining the terms “spouse” and “marriage,” where they appear in federal securities statutes, rules and regulations, interpretive releases, orders, and guidance issued by the staff or the Commission.

The IR is significant mainly because it underscores the complexity of the guidance that was required to clarify the law after Windsor. In light of Obergefell, it will no longer be necessary to consider whether the celebration or residency rules applies, as the marriages of same-sex couples are now recognized throughout the United States.