On October 6, 2014, the Supreme Court of the United States declined to review all seven same-sex marriage cases with petitions for certiorari pending before it. The Court’s refusal to hear the appeals means that the lower court decisions striking down same-sex marriage bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia take effect right away. The immediate effects are twofold. First, the Court’s action (or inaction) allows same-sex marriages to begin or resume in those five states as early as October 6, 2014. Second, the Court’s orders also mean same-sex marriages validly performed in other states must be recognized as valid in these states.
The impact of the Court’s decision, however, is far broader than the five states from which the seven petitions for certiorari arose. Indeed, the Court’s decision means same-sex marriages are constitutionally permitted and protected in all states within the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina), the Seventh Circuit (Illinois, Indiana, and Wisconsin), and the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming). Although 19 states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Washington, Maryland, Delaware, California, Minnesota, Rhode Island, New Mexico, New Jersey, Illinois, Hawaii, Oregon, and Pennsylvania) plus the District of Columbia had already recognized and permitted same-sex marriages prior to the Court’s denial of review announced yesterday, legal challenges to all other state same-sex marriage bans are in the pipeline. Further, appeals are currently pending in the Sixth, Ninth, and Eleventh Circuit Courts of Appeals, and in the Fifth Circuit Court of Appeals, where in Louisiana a district judge recently became the first federal judge to uphold a state same-sex marriage ban.
Since the Court’s decision in United States v. Windsor on June 26, 2013, only one federal court has upheld a same-sex marriage ban. In public comments made in September 2014, Justice Ginsburg stated that there was no need for the Court to rush its ruling on same-sex marriages, but noted that “there will be some sense of urgency” if an appellate court allows a state same-sex marriage ban to stand. Justice Ginsburg advised paying close attention to an upcoming Sixth Circuit decision, which will be binding in Kentucky, Michigan, Ohio, and Tennessee, and may be a potential source of a petition for certiorari and future ruling by the Supreme Court. However, given yesterday’s orders by the Court, it seems unlikely that the Court would allow rulings to stand in the Fourth, Seventh, and Tenth Circuits, which expressly voided same-sex marriage bans and immediately authorized same-sex marriages, only to switch course and later invalidate same-sex marriages elsewhere.
On the heels of the Supreme Court’s orders, employers face the growing challenge of staying abreast of and in compliance with the law—in particular, evolving state laws—in this quickly changing legal landscape.
Who is married?
First, employers must diligently determine which of their employees is legally married for the purposes of administering a myriad of corporate, state, and federal benefits, and in ensuring compliance with rapidly changing law. Employers are well-advised to subject same-sex couples seeking benefits based on their same-sex marriage to no more scrutiny than opposite-sex couples.
State and Federal Laws
Second, employers must remain acutely aware of quickly changing state and federal laws. For instance, federal contractors should become familiar with the requirements and implications of Executive Order 13672, as it affords new protections to employees of federal contractors based on sexual orientation and gender identity, requires new disclosures, and potentially requires tracking of data.
Third, employers must be equally knowledgeable about local ordinances in the cities and municipalities in which they conduct business that have extended protections to lesbian, gay, bisexual, and transgender employees. Such local laws are increasingly being enacted due to the Employment Non-Discrimination Act’s languishing in Congress and the lack of state protections for lesbian, gay, bisexual, and transgender employees.
Finally, given the sea change occurring at the national, state, and local levels, employers are well-advised to augment their equal employment opportunity and non-discrimination policies and training to cover sexual orientation and gender identity. Agencies such as the U.S. Equal Employment Opportunity Commission already consider gay, lesbian, bisexual, and transgender employees and applicants to be covered by the protections of Title VII of the Civil Rights Act of 1964 and have identified this area as a strategic enforcement priority. Employers should embrace these changes where possible to avoid enhanced enforcement and agency scrutiny.