The State of Texas is the latest jurisdiction under scrutiny for its ban on same-sex marriage. On Wednesday, February 26, 2014, U.S. District Judge Orlando Garcia ruled that the state law banning same-sex marriage results in a violation of the equal protection and due process clauses of the U.S. Constitution. Notwithstanding the holding, however, the judge stayed the effect of his ruling to permit an appeal to the Fifth Circuit Court of Appeals (located in New Orleans, Louisiana) and, possibly, to the U.S. Supreme Court. Accordingly, there is no immediate effect of the ruling on the existing ban on same-sex marriages in Texas.
This ruling falls on the heels of similar challenges in Kentucky, Oklahoma, Ohio, Utah and Virginia following the U.S. Supreme Court’s decision in U.S. v. Windsor in June 2013. Recall the Windsor court held that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional and, thereby, required the federal government to recognize same-sex marriage for purposes of a number of federal laws.
The effect for employee benefit plans, generally, is that a same-sex couple that is married in a state that recognizes same-sex marriage will be treated as “married” for purposes of the Internal Revenue Code and the Employee Retirement Income Security Act. Nonetheless, the Windsor decision does not require employers located in states that do not recognize same-sex marriage to provide health or other coverage to such couples. This is not to say, however, that same-sex couples may be denied mandatory federal rights – e.g., spousal rights under a qualified retirement plan – or that the exclusion of same-sex coverage could not implicate other laws, such as nondiscrimination requirements applicable to health plans or rights under Title VII of the Civil Rights Act of 1964. If, however, the Texas ban on same-sex marriage is ultimately determined to be unconstitutional, employers located in Texas will no longer be permitted to exclude same-sex couples from coverage under their employee benefit plans.