Employers still have to contend with plenty of uncertainty regarding employees’ same-gender spouses, regardless of the U.S. Supreme Court ruling in U.S. v. Windsor (No. 12-307, June 26, 2013). That decision may have declared Section 3 of the federal Defense of Marriage Act unconstitutional, but it was a narrow ruling that left divergent state laws addressing same-gender marriage intact. Recent developments in Ohio, Pennsylvania and California demonstrate that the debate is far from over — and that uncertainty for employers remains.
Ohio
A recent court order that runs counter to Ohio’s law recognizing only marriage between a man and a woman exemplifies how the patchwork quilt of state law on same-gender marriage can affect individuals and employers. The case is Obergefell v. Kasich, Case No. 1:13-cv-501 (S.D. Ohio, July 22, 2013).
James Obergefell and John Arthur are Cincinnati, Ohio residents who very recently legally married in Maryland, a state where same-gender marriage is legal. Arthur is currently a hospice patient dying of amyotrophic lateral sclerosis. Ohio is a state where same-gender marriage is not legal, and the state does not recognize the legality of same-gender marriages entered into in other states. As a result, Arthur’s death certificate will note that his marital status at time of death is “unmarried,” and will not identify Obergefell as “surviving spouse.”
Obergefell and Arthur asked the U.S. District Court for the Southern District of Ohio, Western Division to: (1) declare Ohio’s laws against recognition of same-gender marriages entered into in other states unconstitutional; and (2) require the registrar of Ohio death certificates to record Arthur as “married” and Obergefell as “surviving spouse.”
In his ruling, Judge Timothy Black cited the Supreme Court ruling in Romer v. Evans, 517 U.S. 620 (1996), in which the Court said that an amendment to a state constitution that prohibits special protection for homosexuals violates the Equal Protection Clause of the U.S. Constitution. Black said that Ohio has “created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states,” and said that “this lack of equal protection of law is fatal.”
Black also said that since the establishment of the state of Ohio, it has recognized as valid marriages solemnized outside the state if the marriage is valid where it was entered into. He called the Ohio law not recognizing same-gender marriages entered into in other states “a severe burden on same-sex couples legally married in other states” and suggested that it violates the right of association under the First Amendment.
Black called that the uncertainty surrounding the issue during Arthur’s terminal illness an “extreme emotional hardship” and said that in his view, it would cause “irreparable harm” if a death certificate is issued for Arthur in accordance with Ohio law.
Black found that Obergefell and Arthur were entitled to injunctive relief, and issued a temporary restraining order directing that the local Ohio registrar of death certificates not accept for recording a death certificate for Arthur that does not record his marital status as “married” and does not record Obergefell as Arthur’s surviving spouse.
Pennsylvania
Pennsylvania Attorney General Kathleen Kane on July 11 announced that she will not defend the state’s law that prohibits same-gender marriage in Pennsylvania. The American Civil Liberties Union on July 9 filed suit on behalf of 23 individuals against the law, which was enacted in 1996. The suit names Pennsylvania Gov. Tom Corbett (R) and Kane as defendants. ACLU has only filed suit and no ruling has been issued; therefore, current law remains in effect.
California
The California Supreme Court on July 23 refused to order county clerks in California to stop issuing marriage licenses to same-gender couples. San Diego County Clerk Greg Smith had asked the court to stop the issuance of such licenses until there is further clarification of the status of Proposition 8 in the wake of the U.S. Supreme Court ruling in Hollingsworth v. Perry (No. 12-144, June 26, 2013). The High Court on June 26 allowed the Aug. 4, 2010, ruling by the U.S. District Court for the Northern District of California in Perry v. Schwarznegger, No. C 09-2292 VRW, that Proposition 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution to stand. There are pleas before the California Supreme Court that it declare Proposition 8 to still be binding despite the Perry ruling.
Employers: Track Developments
The legal actions in Ohio, Pennsylvania and California do not directly affect employers. As such, employers in those states do not need to make any changes to their benefits plans, human resources policies and documents. However, employers may find it prudent to track developments in these areas.
For more on same-gender marriage, see ¶377 of Employer’s Handbook: Complying With IRS Employee Benefit Rules.
For additional coverage, see:
Supreme Court Rulings Advance Same-sex Marriage, Affect Employee Benefits.
California Employers Need to Adjust Plans to Accommodate Same-sex Spouses
A Changing Workforce: Employee Benefits for Same-gender Spouses and Domestic Partners