The issue of how employers should handle same-sex marriage got a bit murkier November 6 as a divided appeals court panel broke with rulings from four other U.S. circuit courts of appeals by upholding state bans on same-sex marriage.
A three-judge panel from the 6th U.S. Circuit Court of Appeals issued the 2-1 decision, which allows bans on same-sex marriage in four states to stand. The court’s decision—affecting Kentucky, Michigan, Ohio, and Tennessee—differs from other jurisdictions that have recently struck down similar state bans.
Many have predicted that a split in decisions from different circuits would trigger the U.S. Supreme Court to take up the issue even though it declined to take a same-sex marriage case before beginning its current term on October 6. But it’s also possible that the November 6 decision won’t signal a long-lasting split in the circuits because the losing party may request an en banc review, meaning the full court would hear the case.
Robert M. Vercruysse of the Vercruysse Murray, P.C., law firm in Bingham Farms, Michigan, said President Barack Obama’s recent appointments to the 6th Circuit make the court lean more to the left than the right. “With the new Obama judges on the court, there’s a good likelihood that the 6th may get in line with everybody else,” he said.
If there is a request for en banc review, Vercruysse said he would expect the petition to be filed within 30 days, and the court could hear it within 90 days. He said it’s never safe to predict, but the court could affirm or reverse the three-judge panel’s decision before the end of April or May.
In the meantime, employers in Kentucky, Michigan, Ohio, and Tennessee “can continue to follow the concept that it takes a man and a woman to make a marriage,” Vercruysse said. Rulings in the 4th, 7th, 9th, and 10th Circuits have struck down state bans on same-sex marriage.
James D. Cockrum, an attorney with Frost Brown Todd LLC in Louisville, Kentucky, said that although the full 6th Circuit might review the ruling, the current split among the circuits may give the Supreme Court justices a ruling they’re eager to review.
“The ‘let the citizens decide state-by-state’ nature of this ruling strikes me as the kind of decision the current Supreme Court majority—particularly Chief Justice [John] Roberts and Justice [Samuel] Alito—might want to elect to review over other choices,” Cockrum said.
Employers have an interest in the issue since it affects who is eligible for leave under the Family and Medical Leave Act (FMLA) and employer responsibilities imposed by various federal laws and agencies.
Since the Supreme Court’s 2013 United States v. Windsor decision struck down key parts of the federal Defense of Marriage Act (DOMA), various federal agencies have issued guidance saying that same-sex couples who were legally married in states that recognize same-sex marriage are treated as married even if they live in a state that doesn’t recognize such marriages.
In June, the U.S. Department of Labor (DOL) issued proposed regulations that would extend FMLA protections to legally married same-sex couples despite various state laws. Those regulations are not yet final, but they are expected to bring the FMLA in line with other federal laws.