The Supreme Court has granted the petition for a writ of certiorari for Windsor v. United States and Perry v. Hollingsworth, two cases which strike at the heart of the constitutionality of the Defense of Marriage Act (DOMA). We will be closely following developments in this area as the Supreme Court's decision may result in sweeping changes relating to the provision of employee benefits to same sex-couples both on the federal and state levels. The briefing of the cases is expected to take place in early 2013. The court will hear oral arguments in March or April 2013 and a much anticipated decision is likely at the end of June 2013.
In Windsor v. United States, the Supreme Court is likely to determine the constitutionality of DOMA Section 3, which bars the federal government from recognizing same-sex marriages in the application of all federal laws including immigration and employee benefit laws. The issue presented is whether DOMA violates the Fifth Amendment's guarantee of equal protection. In addition to this constitutional issue, there are issues regarding standing before the Court. The Court may not reach the merits of the case if the Court determines that the parties do not standing to bring their appeal.
This case is of great importance in the area of employee benefits because certain pension plans, health insurance plans and other benefit plans are governed under federal laws, including (i) ERISA, a federal statute governing employee benefits, and/or (ii) the Internal Revenue Code, which also applies to employee benefit plans. The various features and protections provided to opposite-sex spouses under such plans are either not available to same-sex spouses or not available on an equal basis because same-sex marriages are not recognized at the federal level as a result of DOMA. If the Supreme Court rules that DOMA Section 3 is unconstitutional, the definition of "spouse" under such plans would be applied without regard to whether the marriage is between opposite-sex or same-sex couples. However, such a ruling by the Court could also result in confirming that the individual states have the right to make the determination of whether a same-sex couple is legally married, such that an employee benefit plan would only have to recognize a same-sex couple as married if the marriage is valid under the applicable state law (much like recognition of opposite-sex marriages).
The Supreme Court will also decide a separate case relating to the highly publicized Proposition 8, a ballot initiative in California. The California Supreme Court in Perry v. Hollingsworth expressed the sentiment that "a rose by another name will not smell as sweet," such that by denying same-sex couples the use of the word "marriage," but leaving other marital rights for same-sex couples intact, Proposition 8 violated the Equal Protection Clause of the United States Constitution. There are similarly issues regarding standing before the Court in this case. A number of possible outcomes of the Supreme Court ruling on the constitutionality of Proposition 8 have been put forth, including: (i) a narrow ruling that only affects California, in which the Court would rule that Proposition 8 is without a "rational basis" because it rescinded a constitutional right that was previously granted (such rescission violates the Equal Protection Clause), (ii) a middle of the road ruling where the Court finds that there is no justification for precluding same-sex couples from the designation of "marriage" where the state provides other benefits of marriage to same-sex couples (this ruling could have an impact for other states that have legal constraints on same sex marriage similar to those of California, such as Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhone Island), or (iii) a broad ruling where the Proposition 8 is declared unconstitutional, with the result that that ruling invalidates all laws prohibiting same-sex marriages in all states.
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