On June 26, 2013, the very last day of its 2012 term, a sharply divided United States Supreme Court issued two highly anticipated decisions affecting the employment and benefits rights of employees in legally recognized same-sex marriages. The Court decided only one of the two cases on its merits: United States of America v. Windsor, 570 U.S. ____ (2013), brought by a surviving same-sex spouse legally married in Toronto in 2007. In Windsor, a slender 5-4 majority of the Court (Justices Kennedy, Ginsberg, Breyer, Kagan, and Sotomayor) struck down Section 3 of the federal “Defense of Marriage Act” (DOMA) as unconstitutional under the Fifth Amendment of the U.S. Constitution. The invalidated DOMA §3 had limited the terms “marriage” and “spouse,” for purposes of interpreting and administering federal statutes and regulations (including those affecting the employment and benefits rights of employees), to legally married opposite-sex couples. In striking down only that section of DOMA, the Court observed that DOMA §3 served no legitimate purpose and injured the very class of citizens that New York had sought to protect when it recognized same-sex marriage. It is important to note that Windsor did not challenge, and the Court did not invalidate, DOMA §2, which allows states to decline to recognize same-sex marriages performed in other states or jurisdictions.

Again by a narrow 5-4 margin (Chief Justice Roberts and Justices Scalia, Ginsberg, Breyer, and Kagan), in Hollingsworth v. Perry, 570 U.S. ___ (2013), the Court ruled that the sponsors of an initiative in California known as Proposition 8 (Prop 8) did not have standing to pursue their appeal of a federal district court decision finding Prop 8 unconstitutional and entering a permanent injunction against its enforcement. Prop 8 had, in effect, nullified an earlier California Supreme Court decision holding that state officials could not permissibly decline to issue marriage licenses to same-sex couples. By ruling only on standing, the Court sidestepped deciding the case on the merits.

On the day that the majority opinions in Windsor and Perry were read from the bench, President Obama directed federal agencies to review the effect of Windsor on more than 1,000 federal statutes and programs whose administration turns in part on an individual’s marital status, including federal laws affecting employment, immigration, employee benefits, public health and welfare, and taxes, among others. The Administration has counseled patience as federal agencies review the many issues raised by the decisions and issue guidance.

Employers operating in or administering benefit plans in states that have legalized same-sex marriage (at this writing, California (marriages performed before Prop 8 and presumably after Perry, prospectively), Connecticut, Delaware (effective July 2013), Iowa, Maine, Maryland, Massachusetts, Minnesota (effective August 2013), New Hampshire, New York, Rhode Island (effective August 2013), Vermont, and Washington, along with the District of Columbia) face immediate questions about the effect of the decisions on their employees under a myriad of federal statutes, including the FMLA, ERISA, COBRA, HIPAA, and the Internal Revenue Code. Unless the Department of Labor issues new guidance to the contrary, for example, legally married same-sex spouses residing in states that permit same-sex marriage may be entitled to FMLA leave and job restoration rights.

Open issues suggested by the decisions include whether the finding of unconstitutionality in Windsor is retroactive, whether any such retroactivity applies only in states that now recognize same-sex marriage, whether legally married same-sex couples can retain spousal rights if they move to a state that has not legalized and/or does not recognize same-sex marriages performed in other jurisdictions, and whether employers or plans sponsors or administrators may confer spousal equivalency benefits or leave rights upon same-sex domestic or civil union partners.

We recommend that employers or plan sponsors in states that have legalized same-sex marriage contact Schiff Hardin Labor and Employment and/or Employee Benefits counsel immediately to consider what policy, procedural, operational or plan changes may be immediately required. We also recommend that employers in other states contact their Schiff Hardin Labor and Employment and/or Employee Benefits counsel before they take any action in response to these decisions, while we await further guidance from the Departments of Treasury and Labor and other federal agencies.

The Decisions

Windsor: After her partner of 40 years (and same-sex spouse since 2007) succumbed to multiple sclerosis in 2009, Edith Windsor submitted an estate tax payment of $363,053 as executor and beneficiary of her deceased spouse’s estate, a tax she would not have owed had she married a man. Thereafter, she filed for a refund; however, the IRS denied her request because of DOMA §3. She then sued the government in the Southern District of New York, contending that DOMA §3 injured her liberty rights and denied her equal protection of the laws guaranteed under the Fifth Amendment of the U.S. Constitution, and asking the court to order the IRS to refund the estate tax payment.

While the case was pending, the U.S. Department of Justice notified Congress and the district court that it would no longer defend DOMA §3, although the Executive Branch would continue to enforce that section. That decision prompted the Bipartisan Legal Advisory Group (BLAG) in the House of Representatives to intervene in the litigation. The district court found DOMA §3 unconstitutional and ordered the refund, but the IRS refused to issue the refund and instead appealed. On appeal, the Second Circuit invalidated DOMA §3 under a “heightened scrutiny” constitutional analysis, and the Supreme Court granted review.

On a threshold question of standing, the Court ruled that it had jurisdiction to consider the merits of the case, notwithstanding the Justice Department’s decision not to defend DOMA §3’s constitutionality. The Court found that the case satisfied the “case or controversy” requirement in Article III of the Federal Constitution, because the United States retained a “stake” in the litigation, and because there was a “justiciable controversy” regarding the constitutionality of DOMA §3, thoroughly briefed by BLAG in defending the law.

On the merits, however, the Court found DOMA §3 unconstitutional as a deprivation of the Fifth Amendment’s protections of liberty and equal protection under the laws. Writing for the majority, Justice Kennedy observed that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of marriage.” The Court further declared that “[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the [s]tates.”

While the definition and regulation of marriage has traditionally remained the province of the states, the Court recognized that New York’s “decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” According to the Court, DOMA §3 rejected the “long-established precept” that “the incidents, benefits, and obligations of marriage are uniform for all married couples within each state, though they may vary, subject to constitutional guarantees, from one state to the next.”

Given the history of DOMA’s enactment and its text, the Court reasoned that a “bare congressional desire to harm a politically unpopular group” could not justify disparate treatment, that DOMA “writes inequality into the entire United States Code,” and that the principal effect of DOMA “is to identify a subset of state-sanctioned marriages and make them unequal.” Having found DOMA §3 “discrimination of an unusual character” warranting “careful consideration to determine whether they are obnoxious to the constitutional provision,”1 the Court struck down DOMA §3 as a violation of the Fifth Amendment’s due process and equal protection principles applicable to the Federal Government.

Perry: In 2008 the California Supreme Court struck state statutes limiting marriage to opposite-sex couples, allowing some 18,000 same-sex couples to apply for and receive marriage licenses. However, in the November 2008 election, California voters narrowly approved Proposition 8, designed to restore the opposite-sex limitation on marriage. In May 2009, two same-sex couples denied marriage licenses (including Kristen M. Perry) sued the two county clerks who denied the licenses and several state officials. After a twelve-day bench trial, the district court declared Prop 8 unconstitutional. The state declined to appeal, and Prop 8’s sponsors did so. The Ninth Circuit affirmed, finding that Prop 8’s elimination of the existing right to marry for same-sex couples but not opposite-sex couples violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

The Supreme Court found that the Prop 8 sponsors did not have standing to sue to uphold Prop 8’s constitutionality after California state officials had refused to do so. Because the district court had not ordered the sponsors to do or refrain from doing anything, the Court concluded that they had “no direct stake in the outcome of their appeal” despite their thorough advocacy of the measure. The Court also recognized that the Court had never conferred Article III standing on “concerned bystanders” with “generalized grievances” but no personal, particularized injury. Writing for the Court, Chief Justice Roberts explained: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” Because the Ninth Circuit did not have jurisdiction to hear the appeal brought by a party with no standing, the Court vacated the Ninth Circuit’s ruling and remanded the case for dismissal of the appeal. At this writing, it appears as if the district court’s finding of unconstitutionality remains intact.

Questions and Challenges

The Court itself carefully limited its decision in Windsor to states that have legalized samesex marriage, perhaps attempting to reserve judgment on state “mini-DOMAs” or “marriage amendments” to state statutes or constitutions for a later day. The Administration has begun the process of reviewing federal employment and benefit laws (among others) in light of the Court’s holding that DOMA §3 offended the Fifth Amendment, and federal agencies will likely issue guidance on implementing these decisions, hopefully in the near future. For the moment, the decisions raise new questions and challenges.

As noted at the outset of this Alert, we recommend that employers and plan sponsors or administrators contact Schiff Hardin Labor and Employment counsel and Schiff Hardin Employee Benefits counsel to begin the process of identifying and resolving the complex issues raised by these landmark decisions.