SCOTUS Alert: Same-Sex Marriage is a Go, and ACA Stays Alive

by Baker Donelson
Contact

Two big decisions in two days from the Supreme Court. Read on for details.


Same-Sex Marriage is a Go!

Today, the United States Supreme Court issued a monumental decision in Obergefell, et al. v. Hodges, et al.; Case No. 14-556. In a 5-4 vote, the Supreme Court held that state bans of same-sex marriages are unconstitutional. Specifically, the Fourteenth Amendment requires a state to issue marriage licenses to same-sex couples if it does so for heterosexual couples. The Court also held each state must give full faith and credit to same-sex marriages performed in another state.

What does the Decision Mean for Employers?

Employers should review their FMLA policies, benefit plans, and Equal Employment Opportunity and Anti-Harassment/Discrimination policies. Employers should also be aware of potential religious discrimination and harassment claims.

In 2013, the United States Supreme Court held, in U.S. v. Windsor, that the Defense of Marriage Act's limitation of "marriage" and "spouse" to heterosexual couples was unconstitutional. After the Windsor decision, President Obama directed the Attorney General along with governmental agencies to review federal laws to ensure the Windsor decision was implemented for federal benefit purposes. The Department of Labor (DOL) reviewed the Family Medical Leave Act (FMLA), and through the rulemaking process, tied the definition of spouse to the state's definition where the marriage was performed (as opposed to the prior requirement tying the definition to the state of the employee's residence). That change was quickly challenged in Texas v. United States, Civil Action No. 7:15-cv-00056 (N.D. Tex.). The District Court for the Northern District of Texas issued a preliminary injunction and stayed the application of the new definition, pending further review; however, the District Court subsequently stayed that matter pending the Obergefell decision. Based upon today's ruling, we anticipate the case will be dismissed as moot. We expect the DOL to revise the FMLA regulations to specifically recognize FMLA eligibility for same-sex spouses. Employers should revise their FMLA policies to reflect the same.

Additionally, companies should review their benefit plans to make certain same-sex couples are provided the same rights and privileges with regards to all benefits afforded heterosexual couples. Handbooks should be updated accordingly.

Further, companies should review their Equal Employment Opportunity and Anti-Harassment/Discrimination policies. In some states, marital status is a protected category. Manuals should be clear that the company will not discriminate based upon same-sex marital status.

As noted in the opinion, gay marriage raises religious freedom and free speech issues. Employees may be vocal about their religious beliefs and opinions on this decision. If employees express their religious views at work, employers should recognize Title VII protects against discriminatory decisions based on a person's religion and protects against harassment based on religion. However, employers may require all employees to be respectful of others' views in their communications.

What's Next

The next big question will be whether sexual orientation and gender identity will be protected classes. Many federal agencies, including the EEOC, have taken the position that sexual orientation and gender identity are protected categories, and they are actively pursuing cases to have courts recognize that position. Additionally, Congress has considered bills, such as the Employment Non-Discrimination Act (ENDA), which would specifically recognize sexual orientation and gender identity as protected categories. Although ENDA failed and based upon the Supreme Court's position in Windsor and now Obergefell, we anticipate that it is only a matter of time before sexual orientation and gender identity are specifically recognized as protected categories. As such, employers may choose to be proactive and implement policies accordingly, including training supervisors and employees on these issues.


Supreme Court Upholds Affordable Care Act – Authorizes Subsidies for Both Federal and State Exchanges

In the latest challenge to the Affordable Care Act (ACA), the Supreme Court yesterday in King v. Burwell upheld the provision of subsidies to individuals, regardless of whether the individual is enrolled in a state-sponsored or federal exchange / marketplace. By way of background, a key portion of the ACA is the individual mandate, which requires all individuals to obtain health insurance or pay a penalty. To assure that health coverage is available to everyone, including those without employer-sponsored coverage, the ACA provides for the creation of an online marketplace in each state, referred to an "exchange." In drafting the ACA, Congress anticipated that each state would establish its own exchange. However, as prior interpretations of the ACA provided, states cannot be required to establish an exchange. Therefore, many of the states declined to establish exchanges. To assure access to health coverage for all individuals, regardless of state of residence, the federal government authorized a federal online marketplace – the Federal Exchange.

As part of the individual mandate and to assure "affordability" of coverage, the ACA provides that individuals enrolled in exchange coverage "established by the State" will be eligible for subsidies based upon household income. The issue before the Court in King v. Burwell was whether or not the phrase "established by the State" would apply only to state-sponsored exchanges and not to the Federal Exchange. Rather than apply the literal wording of the statute, the Supreme Court opined that the intent of the law was to provide subsidies for those enrolled in exchanges – whether established by a state or by the federal government.

By a vote of six to three, the Supreme Court agreed with the Obama administration that subsidies are available for all taxpayers who buy health insurance through an exchange, no matter whether that exchange was created by a state or the federal government. This ruling effectively maintains the status quo.

King v. Burwell does not appear to be the end of challenges to the ACA. Challenges by non-profit religious groups to the mandatory access to birth control will likely be making their way to the Supreme Court.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.