As we previously reported, the decision overturning the federal Defense of Marriage Act (DOMA) left open many questions, including the impact of the decision on states that do not recognize same-sex marriage. Recent decisions by federal district courts in Ohio and Pennsylvania have begun to answer these questions. Specifically, in Obergefell v. Kasich, a federal district court in Ohio ruled in favor of a terminally ill plaintiff who was near death and who had been married in a state that recognized same-sex marriage. The plaintiff sought an injunction giving him the right to be listed as "married" on his death certificate and identifying his husband as the "surviving spouse." Although Ohio law bars recognition of same-sex marriages, the court ruled that this law violated the federal constitution’s equal protection clause, in part because Ohio law recognized marriages from other states that are not lawful in Ohio, such as a marriage between minors or first cousins. This decision could have substantial implications for marriage-based employment rights in Ohio. Likewise, in Cozen O'Connor v. Tobits, a federal district court in Pennsylvania ruled that a surviving spouse in a same-sex marriage is entitled to the same survivorship rights as an opposite sex marriage for purposes of a law firm’s profit-sharing plan, even though the dispute arose and was litigated in Pennsylvania, a state that does not recognize same-sex marriage. The court reached this conclusion because: (1) the decision overturning DOMA no longer permits discrimination in federal benefits based on same-sex marital status, (2) the profit-sharing plan at issue was governed by federal law and did not distinguish between same-sex and opposite sex marriages, and (3) therefore, Pennsylvania’s constitutional ban against same-sex marriage was pre-empted by federal law. These two cases are too small of a sample from which to draw broad conclusions, but the early signs are that federal courts appear to be inclined to conclude that same-sex married couples do not lose their marriage-based rights, including their right to employee benefits, just because they reside in states that do not recognize same-sex marriages. We will continue to keep you informed of subsequent decisions in this area as it relates to employers.
