The Supreme Court Recognizes a Fundamental Right to Same-Sex Marriage

By Patrick J. Hoban*

In Obergefell v. Hodges, Case No. 14-556 (June 26, 2015), a five-justice majority of the Supreme Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution guarantee same-sex couples the fundamental right to marry under state law. The decision overturned last summer’s Sixth Circuit Court of Appeals decision which consolidated four actions and upheld state-law prohibitions on same-sex marriage in Michigan, Kentucky, Tennessee, and Ohio.

The Supreme Court based its decision upon the following analysis of law and tradition:

• Same-sex couples’ desire to participate in state-sanctioned marriage strengthens the societal institution;
• The historical concept of marriage has transformed with time;
• Marriage is a personal choice that is “central to the individual dignity and autonomy” and includes “intimate choices defining personal identity and beliefs” which the Constitution protects;
• “Two-person unions” and the “intimate association” they represent are a fundamental right;
• Same-sex marriage safeguards children and families by preventing the stigma and “humiliation” of the states’ refusal to recognize the individual choices upon which they are based;
• Marriage is a “keystone” of the Nation’s social order and, as a result, laws prohibiting same-sex marriages deny same-sex couples the “constellation of benefits” linked to marriage;
• Laws that prohibit same-sex marriage are unequal and deny same-sex couples from exercising a fundamental right;
• The right to marry is “a fundamental right inherent in the liberty of the person” and under the Due Process and Equal Protection clauses of the Fourteenth Amendment; and,
• Same-sex couples need not wait for legislative action before asserting a fundamental right.

The Court emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” and that the First Amendment gives “religious organizations and persons” proper protection to “teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Each of the four dissenting justices filed separate opinions which criticized the majority for “legislating” and not adjudicating, “revising” the Constitution, “exault[ing] judges at the expense of the People,” and “usurp[ing] the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

For employers, the key significance of the Court’s decision is the effect it will have on spousal benefits and administration of employee payroll taxes. Many employers, whether self-insured or fully-insured, already have extended health and other insurance benefits to same-sex spouses of their employees in recent years. However, employers who have not done so based on state-laws prohibiting the recognition of same-sex marriages must discuss changing health and other employment-based insurance benefits contracts to extend coverage to same-sex spouses. Additionally, employers must review their human resources practices to ensure that employees in same-sex marriages receive the same leave and other employment benefits as opposite-sex married employees and seek legal counsel as needed.

The Obergefell decision recognizes that some individuals with religious beliefs that reject same-sex marriage continue to enjoy the protection of the First Amendment with regard to “advocating” those beliefs. Of course, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” At this time it is unclear whether the federal courts will recognize a “conscience objection” to the Obergefell decision under the Free Exercise clause of the First Amendment. Employers who may consider a policy or practice at odds with Friday’s decision must carefully consider the potential risks and seek legal counsel concerning such policies or practices.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. Pat regularly counsels employers on LGBT issues. For more information about the Obergefell decision, labor & employment law, or any other workplace related issues, please contact Pat | pjh@zrlaw.com | 216.696.4441.