U.S. Supreme Court Declines to Hear Same-Sex Marriage Appeals and Ninth Circuit Court of Appeals Add U.S. Supreme Court Declines to Hear Same-Sex Marriage Appeals and Ninth Circuit Court of Appeals Add

U.S. Supreme Court Declines to Hear Same-Sex Marriage Appeals and Ninth Circuit Court of Appeals Adds to List of Marriage Equality States

In a surprise move, the U.S. Supreme Court on October 6, 2014 declined (without comment) to review the Fourth, Seventh, and Tenth Circuit U.S. Court of Appeals decisions that had overturned same-sex marriage bans in five states.  By denying certiorari in these cases, the high Court let stand the lower federal appellate court decisions, effectively clearing the way for same-sex marriages to begin or resume in Indiana, Oklahoma, Utah, Virginia and Wisconsin.  The decision also is binding in each of the other states in those three circuits, so the six other states (i.e., Colorado, Kansas, North Carolina, South Carolina, Virginia and Wyoming) that are bound by the appellate decisions in the affected circuits may now be required to recognize same-sex marriage, despite bans.

On October 7, 2014, the Ninth Circuit U.S. Court of Appeals held in Latta v. Otter that same-sex marriage bans in Idaho and Nevada violate the Equal Protection clause of the U.S. Constitution.  That decision was put on hold – at least temporarily – on October 8th when U.S. Supreme Court Justice Anthony Kennedy issued a stay of the decision, which will be referred to the full Court.  The Ninth Circuit's decision would add those two states, and potentially three additional states (i.e., Alaska, Arizona, and Montana) to the list of marriage equality states.

Employers are advised to pay close attention to these and future developments in this area, due to the very real impact (including current action required) that legal recognition of same-sex spouses in new jurisdictions will continue to have on their employee benefit plans, labor and employment practices, and related areas.


On June 26, 2013, in United States v. Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  Section 3 of DOMA had provided that, for federal law purposes, marriage can mean only a legal union of opposite-sex spouses.  On the same date, in Hollingsworth v. Perry, the Court also effectively reinstated same-sex marriage in California (same-sex marriage had been put on hold during the federal litigation over Proposition 8, which had temporarily halted such marriages in that state).  Neither case directly addressed the broader question of whether same-sex marriage is mandated in all 50 states under the U.S. Constitution.
However, since Windsor, all but one of the federal district courts which have considered same-sex marriage bans have held such bans to be unconstitutional, based on language in the Windsor decision.  Prior to the October 6th and 7th rulings, 19 states and the District of Columbia (DC) permitted same-sex marriages; this number has now jumped to 35 states (taking into account all states in the affected circuits) and DC.  The remaining 15 states that are not covered by either the Supreme Court or Ninth Circuit decisions (or are not otherwise currently same-sex marriage states) are as follows:

Fifth Circuit: Louisiana, Mississippi, Texas
Sixth Circuit: Kentucky, Michigan, Ohio, Tennessee
Eighth Circuit: Arkansas, Missouri, Nebraska, North Dakota, South Dakota
Eleventh Circuit: Alabama, Florida, Georgia

Arguments have been heard and a decision is expected soon in the Sixth Circuit, and state or federal litigation is pending in each of the remaining U.S. states.
Implications for Employee Benefit Plans

Subsequent to Windsor, the IRS released official guidance addressing some of the more immediate implications of the Court's decision with respect to employee benefit plans, including effective dates, plan amendments, and retroactivity issues.  For details, please see the following previous Ice Miller publications (click on the links, below):

Generally stated, following Windsor and the related guidance, employee pension benefit plans and self-insured employee welfare benefit plans must recognize same-sex spouses pursuant to marriages validly performed under the applicable laws of the state of celebration as "spouses" for qualification and taxation purposes under such plans.  Further, pension plans will need to be operated in compliance with Windsor and the subsequent guidance generally as of June 23, 2013 (or as of September 16, 2013 with respect to the "state of celebration" rule).  Pension plan sponsors generally may choose to apply Windsor as of an earlier date, provided the plan is amended accordingly.  Many private employers will need to amend their pension benefit plans to correct any non-compliant definitions of "spouse," "marriage," etc. on or before December 31, 2014.  Governmental plans must make such amendments on or before the close of the first regular legislative session of the legislative body with the authority to amend the plan that ends after December 31, 2014  (see IRS Notice 2014-19).  Plans must currently recognize spouses for all qualification purposes under such plans; for example, plans subject to ERISA must provide valid same-sex spouses with the opportunity to elect survivor benefits in the form of a "qualified joint and survivor annuity."

Insured employee welfare benefit plans in states where same-sex marriage is now legal most likely will also be required to recognize same-sex spouses for coverage, COBRA, and numerous other purposes pursuant to the applicable insurance laws of such state, the state of celebration, and/or the state in which the policy is issued.

Now that more states recognize, or soon will recognize, same-sex marriage, compliance with Windsor and its progeny will affect a substantially greater number of employers.
Family Medical Leave Act (FMLA) Implications
Under the FMLA, an employee is entitled to take up to either twelve (12) or twenty-six (26) weeks of leave (depending on the reason for the leave) in a twelve (12) month period to care for a spouse with a serious health condition or a serious illness or injury related to active military duty, or to address qualifying exigencies related to a spouse’s call to active duty in a foreign country.  During an FMLA leave, employees are entitled to continue their coverage under the employer’s group health plan, as long as they make the required premium payments.
The regulations implementing the FMLA currently define the term  “spouse” as a husband or wife as defined by the law in the state in which the employee resides.  Therefore, employees who marry their same-sex spouse and reside in the states of Indiana, Wisconsin, Utah, Oklahoma, and Virginia (and, arguably, the eleven other states that are bound by the Supreme Court and/or Ninth Circuit decisions) will now, or will soon, be entitled to FMLA leave related to their same-sex spouse and the continuation of benefits during such leave.
The Department of Labor (DOL) has proposed regulations that redefine the term “spouse” under the FMLA to more closely align with the definition of a spouse under ERISA.  Specifically, the definition in the proposed regulations define the term “spouse” as:
[A] husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
This definition could be modified when the DOL finalizes the regulations; however, we anticipate that the definition of "spouse" under the FMLA will change to cover same-sex marriages that were legal in the state in which they were performed.  As a result, employees who marry their same-sex spouse in the states in which same sex marriages are now legal will be entitled to FMLA leave related to that spouse, regardless of where the employee resides or where the employer is located.  When this change is made, employers will need to review their FMLA policy and health benefit plans to address the new definition of spouse.  In the meantime, employers should keep in mind that same-sex spouses currently are entitled to FMLA leave if the employee resides in a state that permits same-sex marriages, including the states governed by the Fourth, Seventh, Ninth and Tenth federal Circuits.
What's Ahead?

By refusing to revisit the appellate decisions in the Fourth, Seventh and Tenth federal  Circuits, the Supreme Court significantly expanded the number of same-sex marriage states without having to issue an opinion – and the Ninth Circuit's decision in Latta further expanded the list of states.  Should one of the remaining U.S. circuits (the Fifth Circuit, the Sixth Circuit, the Eighth Circuit or the Eleventh Circuit) uphold a state's same-sex marriage ban in the near future, the Supreme Court may step in to review the decision at that time.  Conversely, if all of the federal circuits end up striking down such bans, the Court may not feel the need to actively address the issue at all.  In the meantime, employers who sponsor employee benefit plans, and that are subject to the FMLA, as well as public retirement systems, should review plans and policies in light of Windsor and this recent development, particularly if you are in the Fourth, Seventh, Ninth or Tenth Circuit districts.
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If you have any questions or would like additional information regarding the Windsor decision's implications, and/or how these recent developments will impact your plans, please contact any member of Ice Miller's Employee Benefits Group.  If you have questions about the impact of same-sex marriages on the FMLA, please contact Tami Earnhart or any member of Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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