Given President Obama’s tweet moments after issuance of the opinion that Obergefell 'is a big step in our march toward equality,' employers should stay acutely aware of what happens next...
We asked attorneys writing on JD Supra to share with us their initial thoughts on the implications of the U.S. Supreme Court's Obergefell decision in favor of same-sex marriage equality, especially with regard to the impact in the workplace. Expect additional, detailed analysis in the coming days and weeks - in the meantime, here is what we heard back. At first glance:
Perhaps the most important question will be, how will employers handle the workplace conflicts that may arise because some employees disapprove of same-sex unions, sometimes because of sincerely held religious beliefs, which are also legally protected?
Robin Shea, legal blogger extraordinaire and partner at law firm Constangy:
"From the standpoint of employers, I do not expect the Court's ruling to have a dramatic impact, and it may simplify administrative matters for employers who operate in states that recognize same-sex marriages as well as states that did not. If they have not already done so, employers will have to ensure that their benefits plans (health, life insurance, etc.) define 'spouse' in accordance with the Court’s ruling. The Supreme Court in U.S. v. Windsor already made clear that under federal law 'marriage' and 'spouse' included same-sex unions, and the U.S. Department of Labor has taken the position that 'spouse' under the Family and Medical Leave Act includes same-sex spouses. Perhaps the most important question will be, how will employers handle the workplace conflicts that may arise because some employees disapprove of same-sex unions, sometimes because of sincerely held religious beliefs, which are also legally protected?
It remains to be seen whether Obergefell could possibly result in future legal challenges based on equal protection or due process grounds based on the existence of this now inalienable, fundamental right to marry regardless of gender, especially given the non-passage of ENDA…
Nonnie Shivers, shareholder in the Phoenix office of law firm Ogletree Deakins:
“Obergefell will undoubtedly be hailed as a significant victory on its face by LGBT employees and their allies (including companies who believe their support is good business). Although the United States Supreme Court held that same-sex couples have a fundamental right to marry and went much further than it previously did in U.S. v. Windsor, the Court avoided applying heightened or strict scrutiny (or identifying any particular level of scrutiny at all) in rendering its decision.
Much like the sociological exposés written by various courts deciding same-sex marriage cases post-Windsor, the Obergefell opinion is fascinating in its historical and cultural approach to finding such a fundament right to marry exists. The Court’s cited tenets, including children, families and evolution of the institution of marriage through history, certainly gave rise to the dissenting justices' comments about the majority opinion’s 'profundities' and 'incoherence' (according to Justice Scalia) that the right to enter into a same-sex marriage is not found in or based on the U.S. Constitution (according to Chief Justice Roberts). The Court instead found that due process and equal protection grounds, as well as historical and cultural underpinnings related to dignity and children, were sufficient to validate (or some might argue confer) the fundamental right to marry to same-sex couples.
Given the broad approach used by the Court, no new protected class has been created...
Given the broad approach used by the Court, no new protected class has been created, but it remains to be seen whether Obergefell could possibly result in future legal challenges based on equal protection or due process grounds based on the existence of this now inalienable, fundamental right to marry regardless of gender, especially given the non-passage of ENDA [the Employment Non-Discrimination Act] and the patchwork of local and state laws that afford protections based on sexual orientation and gender identity/expression. Given President Obama’s tweet moments after issuance of the opinion that Obergefell “is a big step in our march toward equality,” employers should stay acutely aware of what happens next.
Rules with respect to entitlement to government and employer benefits will have to be reconsidered…
Scott Schneider, partner in the New Orleans office of Fisher & Phillips and chair of the firm’s Higher Education Practice Group:
"In 1972, the Supreme Court in Baker v. Nelson declared that a claim to gay marriage did not raise 'a substantial question' for the Court to resolve. In 2008, echoing the views of virtually every major national political figure, then-candidate Barack Obama said, 'I believe marriage is between a man and a woman. I am not in favor of gay marriage.'
From a practical perspective, the impact of this decision is somewhat limited...
We have obviously come a long way in a short period of time. Suffice it to say that Obergefell is a historic decision. Both Justice Kennedy’s majority decision and Chief Justice Roberts’ dissent are thoughtful and respectful of the passionate feelings on both sides. Both hinge on broad recurring themes – the 'living Constitution' constantly evolving to accommodate changing mores versus a more limited view of the role the judiciary should play in a democratic society. From a practical perspective, the impact of this decision is somewhat limited and will be felt in those states where same-sex unions are not recognized. There, rules with respect to entitlement to government and employer benefits will have to be reconsidered. Additionally, employers will have to reassess employee entitlement to leaves of absence and other protections, including protections under the FMLA and state-leave laws.
*
Follow latest writings on all aspects of same-sex marriage equality right here...
