Get ready for Supreme Court ruling on same-sex marriage

by Tammy Binford

Now that the U.S. Supreme Court has decided to take up the issue of same-sex marriage, employers are weighing the impact a ruling will have.

On January 16, the Court announced that it would consider four cases from each of the states in the U.S. 6th Circuit Court of Appeals—Michigan, Ohio, Kentucky, and Tennessee. On November 6, a three-judge panel of the 6th Circuit issued a decision that allowed state bans on same-sex marriage to stand. That decision was at odds with rulings from other circuit courts of appeal that had struck down similar bans.

After the 6th Circuit’s decision, many predicted that the split in decisions from different circuits would prompt the Supreme Court to take up the issue even though it declined to hear a same-sex marriage case before its term began in October. Now that it has decided to take up the issue after all, it is expected to hear arguments in April and issue a decision by the end of its term in June.

Effect for employers

Currently, 36 states allow same-sex marriage. Arizona is one of the states where gay marriage became legal in October when the Supreme Court let stand a court ruling that struck down a ban on such marriages. The development means that employers in Arizona and other affected states must make sure their policies conform to the law on issues such as benefits provided to married couples and the administration of laws, including the federal Family and Medical Leave Act (FMLA).

Jodi Bohr, who practices with Gallagher & Kennedy, P.A., in Phoenix, Arizona, says employers have been revising handbooks, undergoing policy revisions, and applying their leave policies uniformly to all legally recognized marriages.

Bohr says she expects the Supreme Court to provide a definitive, nationwide decision. “I’m with the majority of people who don’t expect the Supreme Court to punt, but instead to decide this issue once and for all,” she says. “I expect the Supreme Court to follow the current trend in ruling that same-sex marriage bans violate the Equal Protection Clause.”

As to what employers should think about if the Court’s ruling effectively legalizes same-sex marriage nationwide, Bohr says employers should review their handbooks for compliance. “It would also be wise for employers to ensure their human resources staff or other personnel responsible for implementing policies have proper training on how these revisions impact the implementation of policies such as FMLA,” she says.

And what if the Court rules the other way? “I suppose employers should prepare for the fact that some states whose ban was shot down may try to pass legislation reinstituting the ban. This does not mean that employers need to stop recognizing same-sex marriages for the purpose of implementing their policies,” Bohr says. “In fact, because pending revisions to the FMLA regulations include changing the definition of spouse to include recognizing same-sex marriages based on the place of celebration, not the place of domicile, and those revisions should take effect early this year, employers should not revert to their previous policies.”