Sixth Circuit decision bucks trend on same-sex marriage

By Paul Ross

As you all know, the last several weeks and months have seen an unmistakable trend in federal court decisions paving the way for same-sex marriage in a majority of states. But just when it appeared that same-sex marriage might have gained unstoppable momentum, the Sixth Circuit Court of Appeals made its long-awaited decision regarding same-sex marriage bans in Ohio, Kentucky, Michigan and Tennessee.

In a decision released yesterday, the Sixth Circuit held that federal courts cannot intervene in the rights of states to determine their own definitions of “marriage.” Obviously, this ruling places the Sixth Circuit in direct conflict with other circuit courts that have invalidated similar laws on constitutional grounds.

Yesterday’s decision doesn’t have any impact on employers with operations exclusively in the Tenth Circuit (Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah). Our Court’s decision in the Bishop case continues to govern here. And it doesn’t have a great deal of impact on employers with operations in Ohio, Kentucky, Michigan and Tennessee. Federal law still requires that tax-qualified retirement plans treat same-sex spouses equally to opposite-sex spouses, and the Family Medial Leave Act still requires a similar recognition of those relationships. And as we mentioned here and here, employers that offer benefits to spouses should very seriously consider the risks of not offering those same benefits to same-sex spouses. But, for now, employers with operations in Sixth Circuit states can still technically consider a bifurcated approach to the provision of some employment benefits. Whether that distinction is worth the administrative burdens and the risks of discrimination claims will be up to the individual employer to decide.

Uncertainty in the law will remain, a least for a while. But this decision creates the split of authority that often finally leads to action by the U.S. Supreme Court. A final answer from our country’s authority on the Constitution is now far more likely, if not inevitable, after yesterday’s ruling. As always, we’ll monitor the changing landscape and check back in when we know more.