By denying cert in seven cases covering five states, the Supreme Court effectively legalized gay marriage in most, if not all, of the United States. In each of the cases, the lower courts had found bans on same-sex marriages to be unconstitutional. Therefore, the Supreme Court was not really facing any sort of conflict between the Circuit Courts since those on appeal were all in agreement. Given the Supreme Court’s actions today, one can conclude that any court finding such a ban to be constitutional will likely be overruled if it were to reach the Supreme Court.

Given the Supreme Court’s actions today, one can conclude that any court finding such a ban to be constitutional will likely be overruled if it were to reach the Supreme Court...

What does this mean for the legality of gay marriage?  Marriage equality is going to become the law in many states where it was banned, simply because the states sit within the Circuit where the appeal was taken. For example, one of the cases that the Supreme Court denied cert on was a Fourth Circuit case from Virginia.  Included in the Fourth Circuit is North Carolina, which outlaws gay marriage by statute and by constitutional amendment. There are several cases pending against North Carolina’s ban. The courts will likely soon issue orders finding North Carolina’s prohibitions unlawful, thereby paving the way for gay marriages in North Carolina.

What does this mean for employers?  What does it mean for employees?

A gay employee can still be fired due to that fact. Despite the Supreme Court’s denial of cert, there is still no national protection from workplace discrimination for those in the LGBT community. ENDA, the Employment Non-Discrimination Act, has not passed despite years of attempts. Plus, after the Supreme Court’s decision in Hobby Lobby, some LGBT groups are concerned about the application of Hobby Lobby to any religious exemption that might be part of ENDA if it were to pass.

A gay employee can still be fired due to that fact. Despite the Supreme Court’s denial of cert, there is still no national protection from workplace discrimination for those in the LGBT community.

Even though ENDA has not passed, courts seem more receptive to sex stereotyping arguments brought by or on behalf of LGBT employees. The EEOC just filed (on Sept. 24) its first two lawsuits alleging unlawful sex stereotyping by employers who terminated transgender employees. This is on the heels of the EEOC decision in 2012, Macy v. Holder, where the EEOC ruled that the ATF had discriminated against a transgender applicant on the basis of sex when the agency withdrew an offer of employment.

President Barack Obama this summer signed Executive Order 13672 amending EO11246 making it illegal for federal contractors to discriminate on basis of sexual orientation or gender identity. However, this Executive Order does not apply to the majority of employers.

The U.S. Department of Labor for benefits issues (ERISA Technical Release 2013-04) and the IRS for employment taxes (Revenue Ruling 2013-17, dealing with claims of refunds for overpayment of FICA among other issues) took the position in 2013 that the place of celebration controls for same-sex marriage issues under benefit and tax laws. So, if someone married in a state where same-sex marriage is legal but lives/works in a state where it is not, they can cover a spouse under benefits plans or claim refunds of overpayment of employment taxes. This is due to the Supreme Court's U.S. v. Windsor decision.

The DOL for FMLA purposes uses place of residence to determine if someone can take time off for a spouse under the FMLA. This summer the DOL proposed a place of celebration rule under the FMLA that would operate to provide same-sex couples time off under FMLA if they married in a state where such is legal. Given today’s denial of cert, which will lead to even greater legality of same-sex marriage, it may be that the DOL does not even need to go through with its proposed rule change, since a majority of states now or will soon recognize gay marriage. However, since states still do not recognize gay marriage or will not have to by virtue of not being in one of the Circuits affected today, the DOL may well continue with its proposed rule.

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[Jonathan Yarbrough is a partner at Constangy, Brooks & Smith, LLP. His practice includes providing advice and counsel to employers on compliance with federal and state employment laws, including the Family and Medical Leave Act, the Americans with Disabilities Act, and wage and hour laws. He also assists federal contractors with affirmative action planning and compliance.]

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