In a five to four decision, the United States Supreme Court held that (1) the Fourteenth Amendment Due Process and Equal Protection Clauses require states to perform same-sex marriages and (2) the U.S. Constitution requires states to give full recognition to marriages performed elsewhere. In Obergefell v. Hodges, (576 U.S. ___, June 26, 2015), fourteen same-sex couples and two men whose same-sex partners are deceased, independently filed suit in Federal District Courts of Michigan, Kentucky, Ohio and Tennessee, challenging the states’ definition of marriage as a union between “one man and one woman” and/or its recognition of same-sex marriage. Petitioners asserted that the definition of marriage used by each of the states violates their Fourteenth Amendment rights by denying them the “right to marry or to have their marriages, lawfully performed in another State, given full recognition.” Id. at 2. Although the District Courts each ruled in the petitioners’ favor, on appeal the Sixth Circuit consolidated the cases and ultimately reversed.
In so holding, the U.S. Supreme Court found that the right to marry is fundamental requiring protection under the Fourteenth Amendment Due Process and Equal Protection Clauses. Id. at 11. The Court explained that marriage is fundamental to same-sex couples, just as it is opposite sex couples, as marriage (1) “is inherent in the concept of individual autonomy” (2) “supports a two-person union unlike any other in its importance to the committed individuals” (3) “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,” and (4) “is a keystone of our social order.” Id. 12-16.
Although technically, the Court merely reversed the Sixth Circuit’s decision sending it back to the lower court for review, in essence, the Court’s decision legalized same-sex marriage in the remaining fourteen states. In doing so, same-sex couples now have the full rights and benefits of marriage, including beneficial tax treatment, potential insurance coverage, estate planning and potential coverage by labor and employment laws such as the Family and Medical Leave Act (“FMLA”).
The full impact of the Supreme Court’s decision has yet to be determined. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination and retaliation based upon “sex” but does not necessarily include discrimination or retaliation based on sexual orientation. While Obergefell does not expand Title VII’s protected classes, “sex” has been interpreted by the Court to include gender stereotyping of lesbian, gay, bisexual and transgendered individuals. Moreover, the language of the Obergefell decision, may lead to further challenges seeking to expand the application of the existing Title VII protected categories, namely “sex.”
With this change, companies should evaluate their current employee handbooks and policies to determine whether or not revisions are necessary. Until the full implications are understood and required changes implemented, employers should proceed cautiously. We recommend employers consult with an experience employment counsel prior to modifying their employee personnel handbooks or policies. Similarly, employees impacted by such changes should consult counsel.