By: Sam Schwartz-Fenwick, Ian H. Morrison and Jules Levenson

It has been slightly over a year since the Supreme Court invalidated Section 3 of the Defense of Marriage Act (“DOMA”) in United States v. Windsor, thus allowing same-sex spouses who were legally married to receive the federal rights and benefits of marriage.  Left unanswered by Windsor was the constitutionality of Section 2 of DOMA.  Section 2 says that states do not have to extend the benefits of marriage to same-sex couples or to recognize same-sex marriages lawfully entered into in other jurisdictions.

Since Windsor, 47 state and federal trial courts have struck down state bans on same-sex marriage.  The courts have relied on the due process clause of the 5th Amendment and the equal protection clause of the 14th Amendment.  Four federal circuit courts (the 4th, 7th, 9th and 10th Circuits) presented with the same question all agreed that the same-sex marriage bans were unconstitutional.  On October 6, 2014, the Supreme Court rejected petitions to hear these cases.  Overnight the number of states with same-sex marriage increased, or was expected to increase shortly thereafter, to 35.  Proponents of same-sex marriage including former U.S. Solicitor General Ted Olson argued that the battle for same-sex marriage had been won.  See Ted Olson: SCOTUS Has Passed The ‘Point Of No Return’ On Gay Marriage.”

On November 6, however, a divided panel of the Sixth Circuit Court of Appeals, in DeBoer v. Snyder, interrupted this pre-mature victory lap.  In DeBoer, the Sixth Circuit upheld same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. The majority held that it was bound by the Supreme Court’s one sentence ruling from the 1971 case Baker v. Nelson.  In Baker, the Court held that it lacked jurisdiction to decide the constitutionality of same-sex marriageThe Sixth Circuit went on to find that marriage was an issue for states to define for themselves.  It suggested that it was only a matter of time until all states legalized same-sex marriage, and held that courts should not interfere with the democratic process by which the states might reach this result.  The court also found same-sex marriage bans to be rational (hence, constitutional) because they merely codified society’s definition of marriage, a definition which had existed (according to the court) for thousands of years.

In a strongly worded dissent, Judge Martha Craig Daugherty accused the majority of composing an “engrossing TED Talk” on political philosophy, but failing to actually deal with the constitutional question in the case.  The dissent attacked the “wait and see” approach espoused by the majority, noting that advocates of judicial restraint were almost always opponents of expanded constitutional rights.  In addition, the dissent cited approvingly the decisions striking down same-sex marriage bans.  The dissent found that no rational basis exists to maintain the bans, and thus concluded that if the judiciary does not have the authority and responsibility to right fundamental wrongs, the Constitutional system of checks and balances would “prove to be nothing but a sham.”

It is possible that the entire Sixth Circuit will rehear this case and reach a different conclusion.  However, it is equally plausible is that this decision will be appealed directly to the Supreme Court thus forcing the Court to address the Constitutionality of state same-sex marriage bans.  Any ruling by the Court would have significant consequences for benefit plans and employers that currently operate in states without same-sex marriage given the number of benefit plan provisions that turn on marital status.

What’s more, a Supreme Court ruling on this issue would likely turn on the equal protection clause of the 14th Amendment, and would potentially signal greater (or lesser) protection for the LGBT community, generally.  For example, a ruling would affect how courts address claims of LGBT discrimination predicated on Title VII and other anti-discrimination statutes.  A loss for proponents of same-sex marriage would at the least slow judicial efforts to broaden the reach of Title VII and other anti-discrimination statutes to include LGBT discrimination.  In contrast, a decision in favor of same-sex marriage would increase the willingness of at least some courts to hold that Title VII and other anti-discrimination statutes cover LGBT discrimination. See e.g. Terveer v. Billington, No. 12-1290 (CKK), 2014 WL 1280301, at *9 (D.D.C. Mar. 31, 2014) (allowing claim of sexual orientation to proceed under Title VII).

Employee benefit plan sponsors need to continue to follow these developments because, the plaintiffs’ bar has been actively attacking plan limitations on benefits for same-sex spouses, and depending on the outcome of this litigation sponsors may need to amend multiple plans provisions that relate to marital status.