PUBLICATIONS

Legal Alert: Supreme Court Set to Rule on Same-Sex Marriage

Date   Dec 13, 2012
The U.S. Supreme Court has agreed to hear two cases involving the issue of same-sex marriage; the Second Circuit's decision finding the federal Defense of Marriage Act (DOMA) unconstitutional and a Ninth Circuit Decision striking down California's ban on same-sex marriage.

Executive Summary:  The U.S. Supreme Court has agreed to hear two cases involving the issue of same-sex marriage; the Second Circuit's decision finding the federal Defense of Marriage Act (DOMA) unconstitutional and a Ninth Circuit Decision striking down California's ban on same-sex marriage.

In Windsor v. United States, the Second Circuit held that DOMA, which defines marriage as "a legal union between one man and one woman," is unconstitutional under the Equal Protection Clause.  In Hollingsworth v. Perry, the Ninth Circuit held that California's Proposition 8, a ballot initiative banning same-sex marriage, violates the Fourteenth Amendment. 

The Court's decision could have a significant impact on employers.  As discussed in our October 30, 2012 Legal Alert, the federal definition of spouse affects a variety of employee benefit and tax-related issues.  For instance, certain retirement plans are required to provide Qualified Joint and Survivor Annuities or Qualified Pre-retirement Survivor Annuities to spouses (as defined under federal law).  And while a non-federal government employer can extend coverage of a same-sex spouse under its group health plan, benefits may be taxable income to the employee because tax preferred status is only given to the participant's dependent and spouse (as defined by federal law). 

The Court's decision on Proposition 8 will primarily impact states that have banned same-sex marriages.  Currently thirty-one states have enacted such bans.

Employers' Bottom Line:

The Court will likely issue a decision in these cases in June of next year.  We will keep you updated on any developments in this area.  If you have any questions regarding this Alert or other labor or employment related issues, please contact Scott Wagner, an attorney in our Atlanta office at swagner@fordharrison.com, any member of FordHarrison's Employee Benefits Practice Group or the FordHarrison attorney with whom you usually work.