Supreme Court’s Decision on Same-Sex Marriage – Obergefell v. Hodges and its Impact on Employers

Posted on Jul 7, 2015

On June 26, 2015, the United States Supreme Court issued a significant decision in Obergefell v. Hodges, holding that “same-sex couples may exercise the fundamental right to marry in all States,” and requiring states to recognize same-sex marriages performed in other states. Prior to this decision, fourteen states (including Texas) banned same-sex marriages.

It is important to understand that the Obergefell decision does not expressly require private employers to make any changes to their current employment practices, and that presently most federal and state laws do not prevent employers from treating same-sex spouses differently from opposite-sex spouses. However, many employers provide benefits covered by federal statutes and have to comply with various federal laws, including ERISA, the FMLA, and federal discrimination statutes. Consequently, the decision raises—but does not answer—questions as to how these statutes will be interpreted in the future, or whether they will have to be amended. The answers to these questions may have a significant effect on employers, particularly with respect to the issue of what updates must be made to employee benefit plans and policies which currently do not cover same-sex spouses. For example, if an employer offers health care benefits to opposite-sex spouses, must the employer treat same-sex spouses in a comparable manner? Similarly, if an employer allows employees to take personal time off for spousal-related reasons (e.g., bereavement leave to attend his or her spouse’s funeral, non-FMLA medical leave to care for a spouse with a serious health condition), will it be required to extend the same benefit to an employee whose spouse is of the same sex?

Some of these questions may have to be answered through changes to statutes, but we also should expect the U.S. Department of Labor and the Internal Revenue Service to issue guidance regarding the employee benefit plan issues as a result of Obergefell. In the interim, employers (particularly those operating in states like Texas that banned same-sex marriage) should begin reviewing their benefit plans and policies to determine whether updates are appropriate in light of Obergefell. For example, employers who currently provide “domestic partner” benefits programs may also want to consider modifying such programs, now that same-sex couples have the right to marry and have their marriage recognized throughout the country.

Of course, this is not an exhaustive discussion of the law applicable to these issues. For more information on this topic, please email Sandra White, Labor & Employment Lawyer with BRANSCOMB|PC. Her contact information is or (210) 598-5400.