The Benefits of Equality: How Same-Sex Marriage Can Strengthen Your Business

by Reed Smith
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Regardless of whether you believe the Supreme Court should have decided the issue, last week’s decision on marriage equality has the potential to benefit your business. Because the decision creates a uniform definition of marriage across the country, it may simplify administration of some employee benefits, thus saving corporations time and money. As discussed below, however, there are a few steps every employer should take to realize these gains.

In Obergefell v. Hodges, the Supreme Court declared marriage a fundamental right protected by the 14th Amendment of the Constitution and struck all state bans on same-sex marriage. Writing for the majority, Justice Kennedy explained that the fundamental liberties protected by the Due Process Clause (which prohibits states from depriving “any person of life, liberty, or property, without due process of law”) extend to certain personal choices central to individual dignity and autonomy. These choices include those that define personal identity and beliefs.

Critically, as Justice Kennedy explained, these liberties are not static or frozen in time:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

In concluding that same-sex marriage is protected by the Due Process Clause, the Court emphasized the following: (1) the right to personal choice regarding marriage is inherent in the concept of individual autonomy; (2) the right to marry is fundamental and supports a two-person union unlike any other in its importance to the committed individuals; (3) the right to marry safeguards children and families and draws meaning from related rights of childrearing, procreation, and education; and (4) the nation’s traditions make clear that marriage is a keystone of our social order.

The four dissenting justices, writing separately, all criticized the Majority’s decision as usurping the role of the legislature and as based on the justices’ own social policy, not Constitutional doctrine.

Whether employers agree with the majority or the dissent, the decision may benefit employers by adding certainty to the law. In fact, in an amicus curie brief filed in the case by 379 employers and organizations representing companies across the country, certain employers argued that inconsistent state marriage laws imposed an added economic burden on American businesses at an estimated cost of more than $1 billion per year. The patchwork of state laws has forced companies to create complicated administrative schemes to comply with differing federal and state tax laws, has overburdened centralized HR departments forced to interpret complicated legal issues related to marriage, and has driven talented individuals away from certain states.

With the Supreme Court’s decision, businesses will have a less-fractured legal landscape to face when addressing same-sex marriage, possibly translating into more streamlined and consistent applications of employee benefits. To realize these administrative efficiencies and potential cost savings, consider these tips:

  • Review Your Benefits Plans: Be sure your plans offer the same benefits to same-sex couples as those provided to heterosexual couples
  • Review Your Policies: If your business operates in a state that considers marital status a protected category, clarify policies to protect individuals in a same-sex marriage
  • Recognize the Broader Implications: Expect the Department of Labor to issue guidance re-defining “spouse” to encompass same-sex marriage without reference to state law. Also, many in the legal community anticipate the inclusion of sexual orientation and gender identity into the list of classes protected by anti-discrimination legislation.

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.

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