On Tuesday, the California Supreme Court upheld the November
amendment to the state constitution—Prop 8—that prohibits same-sex
marriage. The court did, however, rule that the 18,000+ same-sex
marriages already performed in California will remain legally valid.
While individuals will either praise or denounce the decision
depending on their personal views, for employers the court’s decision
may mostly lead to confusion about how to administer policies and
benefits plans.
Prop 8 amended Article I of the California Constitution to state:
“Only marriage between a man and a woman is valid or recognized in
California.” But, as noted above, same-sex couples married in
California prior to November of last year remain legally married. Many
others are in registered domestic partnerships.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
The federal Defense of Marriage Act (DOMA), passed in 1996, holds
that states are not required to recognize the same-sex marriages of
people married in other states. So same-sex couples married in other
states who move to California are not considered to be married here. It
remains unclear what the legal status of couples married in other
states who moved to California prior to the passage of Prop 8 will be,
in the wake of the court’s decision. What’s more, President Obama has
previously vowed to repeal DOMA, so the federal rules regarding
same-sex marriages may be changing soon as well.
If you find all of this confusing, just remember that regardless of
marital status, California provides the greatest level of protection to
domestic partnerships of any state in the country. In California,
employers are required to provide the same benefits to domestic
partners as are offered to married couples. Moreover, employees are
still protected from discrimination based on sexual orientation. This
means that employers should inform all managers and supervisors that
the Supreme Court’s decision doesn’t alter your non-discrimination
policies in any way. Employers should also be aware that frequent or
harassing statements praising the court’s Prop 8 decision could lead to
bias lawsuits if left unchecked.
We’ll have more on legal developments affecting same-sex employees in upcoming issues of California Employer Advisor.