The Supreme Court and a Sea Change in the Law

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. On Friday, January 16, 2015, the Supreme Court agreed to hear four cases from the Sixth Circuit concerning whether under the Fourteenth Amendment a state can permissibly ban same-sex marriage. The Court previously sidestepped this issue in its 2013 decision in United States v. Windsor. In Windsor, the Court found that under the Due Process Clause of the Fifth Amendment the federal government must extend the federal rights and benefits of marriage to legally married same-sex couples. Windsor, however, did not address the underlying question of whether states are required to recognize and solemnize same-sex marriage.

Should the Court find that the Fourteenth Amendment requires states to license same-sex marriages, the 14 remaining same-sex marriage bans will be nullified. Employers operating in those states would need to conform certain employment policies (such as FMLA leave) to cover same-sex spouses in the manner that employers in the majority of states have had to in the wake of Windsor. State governments would also be required to recognize these marriages.

A ruling striking down marriage bans also would create a unique situation: all states would be required to permit same-sex marriage, but employers in the majority of states could still fire an employee for being gay or for being in a same-sex marriage. Employees, emboldened by a ruling that legalizes same-sex marriage and frustrated by a Congress that has not expressly outlawed LGBT discrimination, are likely to increasingly use the Court to argue that LGBT discrimination is a form of sex discrimination and is thus barred under Title VII. The EEOC and the Obama Administration already take this position. Whether courts will be receptive to such a reading of the law remains an open question. But language in a Supreme Court decision finding that LGBT individuals are a protected class under the Fourteenth Amendment may give such an argument more persuasive effect. An additional outcome of legalization of same-sex marriage is that opponents of same-sex marriage will work to pass state legislation that allows individuals (including employers) to make decisions based on their religious faith. Such laws, which are premised on the Supreme Court’s decision in Burwell v. Hobby Lobby, 573 U.S. ____ (2014), and on the Religious Freedom Restoration Act (RFRA), will allow employers to argue that they can lawfully deny benefits to same-sex spouses (such as for spousal health benefits under an ERISA plan) even in the face of an expansive reading of Title VII. In the Hobby Lobby ruling, the Court made a point of noting that a closely held corporation’s religious beliefs could not be used to justify race discrimination. The Court did not address, however, whether an employer’s religious rights can justify denying benefits to LGBT individuals. The answer to this question will only be decided by clarifying federal legislation or by a subsequent Supreme Court decision.

A ruling allowing states to ban same-sex marriage but requiring them to recognize legal marriages performed elsewhere would avoid many of these issues as it would be limited to the principle of comity (recognizing contracts performed in other states) under the Constitution’s Full Faith and Credit Clause. Such a narrow holding, would allow same-sex couples in all 50 states to obtain a marriage license recognized by the state and federal government, so long as the marriage took place in a jurisdiction that recognized the union. This outcome would create certain difficulties for employers as they would be required to examine the wedding licenses of their same-sex employees to ensure that the marriage took place in a state where the marriage was legal. Such a burden is likely de minimis, however, given that most employers already require proof of marriage before extending spousal benefits to an employee’s spouse. Of course, such a ruling would also reverse the gains of the marriage equality movement. Same-sex marriage bans would remain constitutional, thereby allowing marriage bans to be revived in a majority of states (the 14 states with in-effect bans, plus all states in which courts have invalidated same-sex marriage bans post-Windsor). Such an outcome would be a setback for those arguing for increased rights for LGBT individuals (including LGBT employees).

An even more crushing blow to the LGBT rights movement would occur if the Court found that the Constitution does not require states to license or recognize same-sex marriages. Such an outcome would keep in effect the marriage bans in 14 states and allow over 20 states to argue that their marriage bans, which were struck down by lower courts, should be given full effect on a prospective basis. Such a ruling would have ripple effects beyond the same-sex marriage context. Just as pro-LGBT language from the Supreme Court will likely have an impact on lower court jurisprudence regarding issues surrounding LGBT individuals (including employment and employee benefit discrimination), so too would less positive or negative language from the Supreme Court make lower courts more wary of issuing rulings that increase LGBT rights.