Employers can expect continued uncertainty regarding whether they will need to adjust their plans, documents and policies to accommodate same-sex spouses. The 9th U.S. Circuit Court of Appeals on June 5 refused a petition that the full bench of the court rehear Perry v. Brown, Nos. 10-16696, 11-16577. That lets stand the ruling by a three-judge panel of that court that Proposition 8, the measure that amended the California state constitution defining marriage as between a man and a woman in that state, violates the 14th Amendment guarantee of equal protection under the law.
The court said that its mandate is stayed for 90 days pending the filing of a petition to the U.S. Supreme Court. If the case is sent to the High Court, which is likely, the stay will remain in effect until it issues a ruling.
The three-judge panel’s Feb. 8, 2012 ruling had found Proposition 8 unconstitutional, but its decision was kept narrow. The holding did not address whether it was constitutional for states to define marriage in the manner Proposition 8 does; it merely concerned the California measure.
The California Supreme Court struck down a voter-approved law that forbade same-sex marriage. As a result, such marriages were legal in California from June to November 2008. Voters then approved Proposition 8 in November 2008, ending same-sex marriage in California.
Same-sex marriage supporters in California then turned to the federal courts. On Aug. 4, 2010, Judge Vaughn R. Walker, chief judge of the U.S. District Court for the Northern District of California, ruled in Perry v. Schwarzenegger that Proposition 8 violates the U.S. Constitution. Supporters of Proposition 8 appealed to the 9th Circuit.
What the Latest Ruling Means
Employers and plan administrators in California — as well as employers in other jurisdictions — do not need to change their policies, plan documents and employee benefit plans yet — but they would be wise to pay close attention to developments in this case so they can be prepared for any changes. If the U.S. Supreme Court issues a ruling, that may require employers in California, and maybe beyond, to adjust their plans, policies and documents.
Here’s the latest 9th Circuit ruling.
Additional information on same-sex marriage is available in Thompson Publishing Group’s Domestic Partner Benefits: An Employer’s Guide.