Winds of Change: What the Supreme Court's Same-Sex Marriage Ruling Means for Kansas, 0116 KSBJ, 85 J. Kan. Bar Assn 1, 31 (2016)

• Author: Teresa Shulda & Jason Lacey

Winds of Change: What the Supreme Court's Same-Sex Marriage Ruling Means for Kansas Employers and Employees

Vol. 85 J. Kan. Bar Assn 1, 31 (2016)

Kansas Bar Journal

January, 2016

Teresa Shulda & Jason Lacey

In June 2015 the Supreme Court issued the anxiously awaited decision in Obergefell v. Hodges.¹ In a five-four-ruling, the Court held that state bans on same-sex marriage are unconstitutional. Now, same-sex couples can legally wed in all 50 states, and presumably will be entitled to the same federal and state marriage-related rights and benefits that opposite-sex married couples enjoy.

Several months later, we've been able to witness some of the impact of that case, perhaps most notably with the Kim Davis episode in Kentucky. Davis, a state county clerk, was ultimately jailed for contempt of court after she refused to issue marriage licenses in the wake of Obergefell, arguing that requiring her to issue same-sex marriage licenses violates her religious beliefs. The Davis case brought the interplay between religious freedoms and gay rights to discussions around dinner tables and water coolers across the nation.

Many employers may soon be facing similar issues, if they aren't already. Obergefell was not an employment case and did not directly address any employment law issues; it clarified the patchwork of state laws regarding the validity of same-sex marriage. But, as this article will discuss, the legal ramifications of Obergefell directly impact a number of employment and employee benefit issues, and also raise additional questions regarding the scope of legal protections afforded to employees based on their sexual orientation.

II. The Obergefell Ruling

The Obergefell case before the Supreme Court actually consisted of several cases from Michigan, Kentucky Ohio, and Tennessee, each of which had state laws banning same-sex marriage. In all, the petitioners were 14 same-sex couples and two men whose same-sex partners were deceased. Each petitioner challenged their respective state's ban on same-sex marriage, and each won their case at the district court level. The Sixth Circuit consolidated the cases and reversed the judgments of the district courts, holding that a state has no constitutional obligation to license same-sex marriage or to recognize same-sex marriages lawfully performed in another state.²

The Supreme Court held that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, as well as recognize same-sex marriages lawfully performed in other states.³ In what many have described as an emotionally charged opinion, Justice Kennedy, writing for a majority that included Justices Ginsburg, Breyer, Sotomayor, and Kagan, recited the importance of marriage in all corners of human society, noting "[t]he centrality of marriage to the human condition__"⁴ After acknowledging that the historical understanding of marriage is a union between a man and a woman, the Court went on to dispel each of the reasons the respondent states proposed for limiting marriage to opposite-sex couples, explaining that even among opposite-sex couples, marriage has evolved over time.⁵

The Court stated that Supreme Court precedent has found that the Due Process Clause of the Fourteenth Amendment guarantees the liberty to make "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."⁶ The Court acknowledged its long-held decision establishing the right to marry, citing Loving v. Virginia?⁷ which invalidated bans on interracial marriages, holding that such laws were unconstitutional.⁸ The Court then recounted the many times since the Loving decision that it has upheld the "fundamental right to marry," including decisions which overturned laws that restricted the right to marry including laws prohibiting fathers who were delinquent on child support from marrying and laws limiting the right of prison inmates to marry⁹ Though those prior decisions all involved opposite-sex marriages, the Court cited four principles and traditions in the history of its jurisprudence which required extending the right to marry to same-sex couples.

First, the right to make personal choices regarding marriage is inherent in the long-recognized concept of individual autonomy. The Constitution protects an individual's right of privacy regarding matters of family and life, including decisions regarding contraception, family relationships, procreation, and child-rearing. The Court believed (Continued on Page 32) that it would be contradictory to recognize a right to privacy regarding these decisions and not extend that same right to the choice to marry¹⁰

Second, marriage creates a two-person union like no other in terms of its importance. The personal satisfaction one receives through the benefit of marriage cannot be denied to same-sex couples.¹¹

Third, marriage safeguards children and families. If same-sex couples were denied the right of marriage, their children would suffer because of the stigma of living in a family that is "somehow lesser" in the eyes of the law than families led by opposite-sex couples.¹²

Fourth, marriage "is a keystone of our social order." The privileges of having a "married" status extend to taxes, inheritance, property rights, medical decision making, adoption rights, survivor benefits, workers' compensation benefits, child custody, visitation, etc. According to the Court, excluding same-sex couples from those benefits results in material burdens and instability for such couples.¹³

For many of the same reasons, the Court also held that the Equal Protection Clause of the Fourteenth Amendment is a second basis for extending the right to marry to same-sex couples.¹⁴ Citing to precedent which invalidated restrictions on marriage under the Due Process and Equal Protection Clauses, the Court held that the Equal Protection Clause, like the Due Process Clause, "prohibits [the] unjustified infringement of the fundamental right to marry"¹⁵

The Court further held that states must recognize same-sex marriages that were lawfully performed in another state. To hold otherwise, the Court said, would maintain and promote instability and uncertainty in the law of domestic relations, and risk inflicting substantial and continuing harm on same-sex couples. Moreover, in light of the ruling that all states must license same-sex marriages, there was no justification for allowing states to refuse to recognize those marriages performed elsewhere.¹⁶

Justice Kennedy gave a poetic closing to the majority opinion: No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.^[17]

Each of the four dissenting Justices, Alito, Roberts, Scalia, and Thomas, wrote separate opinions harshly criticizing the majority's reasoning. Justice Roberts opined that the issue of same-sex marriage is one that should be left to the states, arguing the Supreme Court does not have the authority to force a state to change its definition of marriage, and referring to 32 The Journal of the Kansas Bar Association the majority as engaged in "judicial policymaking."¹⁸ Justice Scalia wielded several colorful zingers about the majority decision. He referred to the opinion's "mummeries and straining-to-be-memorable passages,"^[19] and stated that he would "hide his head in a bag" if he had to join a decision written the way Justice Kennedy started the opinion.²⁰ Like Justice Roberts, Justice Scalia chastised the majority for exercising legislative power and doing so in an area of law reserved to the states.²¹ Justices Alito's and Thomas' dissents were in a similar vein.²² All of the dissenting Justices lamented that the majority short-circuited the democratic process by displacing the will of the people with the opinion of "five lawyers."

II. Obergefell's Impact on Kansas Employers and Employees

Now that same-sex couples can legally marry, what implications must employers consider? Are employers required to extend health and other fringe benefits to employees' same-sex spouses? What if an employee asks for leave to care for her same-sex spouse who has fallen ill? What if the employer has a religious objection to homosexuality and does not want to employ lesbian, gay, bisexual, or transgender ("LGBT") people? Does it matter whether that employer is a faith-based organization? Some of those questions are still unsettled in Kansas, but there are guidelines that can help employers maneuver through the issues until they are finally decided by the legislatures or courts.

A. Employee Benefit Plans

For employee benefit plans, the Supreme Court's

Windsor decision in 2013²³ was arguably a more-significant case than Obergefell. That is because Windsor recognized same-sex marriages for purposes of federal law, and many benefit plan issues are governed by federal law. Thus, for example, as a result of Windsor, same-sex spouses became eligible for tax-free coverage under health and cafeteria plans and became entitled to spousal rights under qualified retirement plans.²⁴

But Obergefell WAX impact employee...