United States: Marriage With A Capital "M": What Employers Need To Know About The Supreme Court's Decision In Obergefell V. Hodges

Last Updated: June 29 2015
Article by Denise M. Visconti, William E. Trachman and Jane Ann Himsel

On June 26, 2015, the U.S. Supreme Court issued what can only be described as a landmark decision, ruling that the Fourteenth Amendment of the U.S. Constitution requires (i) all states to permit marriage between same-sex couples, and (ii) all states to recognize marriages performed in other states, including those between same-sex couples. The opinion effectively confirmed prior judicial decisions declaring state constitutional amendments and statutes unconstitutional and, at the same time, struck down bans against same-sex marriage in the 14 states where such bans remained. As Justice Anthony Kennedy, who authored the majority opinion, wrote:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The decision was close, at 5-4; Justice Kennedy's decision was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. All four dissenting justices—Chief Justice Roberts, and Justices Scalia, Thomas, and Alito—wrote separate dissents.

Issues for Court Consideration

Before the Supreme Court were, in essence, two questions:

  1. does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and
  2. does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The questions arose out of a decision from the U.S. Court of Appeals for the Sixth Circuit, which, in November 2014, ruled on two consolidated cases from Ohio: Obergefell v. Himes1 and Henry v. Himes. In Obergefell v. Himes, James Obergefell and his partner of two decades, John Arthur, traveled to Maryland to get married a few months before John died from complications of a long battle with amyotrophic lateral sclerosis (ALS). They traveled to Maryland because Ohio had both state constitutional and statutory prohibitions against same-sex marriage. Both states also statutorily barred state and local governmental officials from recognizing marriages between same-sex couples performed in other jurisdictions. David Michener, another Ohio resident, wed his partner William Ives in Delaware one month prior to William's unexpected death, and joined as a petitioner in Obergefell along with Robert Grunn, an Ohio funeral director who filled out death certificates and who—by virtue of the Ohio statute—was prohibited from listing John's and William's spouses on their death certificates. Similarly, in Henry v. Himes, four same-sex couples who entered into valid marriages outside the state of Ohio each sought various marital protections in the State of Ohio, including birth certificates listing both spouses as the parents of their respective children.

In Obergefell v. Himes, the federal district court in Ohio ruled that Ohio's marriage recognition bans discriminated on the basis of sexual orientation, and required Ohio to recognize out-of-state marriages between same-sex couples. In Henry v. Himes, the same district court re-confirmed that Ohio's refusal to recognize same-sex marriages performed in other jurisdictions was unlawful, and permanently enjoined the State of Ohio from enforcing the Ohio same-sex marriage bans.

The cases were immediately appealed to the Sixth Circuit, where they were consolidated with four other appeals from district court decisions striking down same-sex marriage bans or marriage recognition laws in Kentucky, Tennessee, and Michigan. On appeal, the Sixth Circuit—in a divided decision—reversed the lower courts in all six cases. The Sixth Circuit held that the marriage bans did not infringe upon the fundamental right to marry, stating a "right to gay marriage" was not a right that appeared in the U.S. Constitution, and it was too soon for courts to override citizen votes on the subject.

The Sixth Circuit opinion, which was in direct conflict with rulings of the Fourth, Seventh, Ninth, and Tenth Circuits, set the stage for appeal to the U.S. Supreme Court.

The Obergefell Majority Opinion

In writing for the Obergefell majority, Justice Kennedy began by outlining the history of the importance of marriage and its evolution over time. Justice Kennedy then outlined the starting point for his decision, the directive in the Due Process Clause of the Fourteenth Amendment: no state shall "deprive any person of life, liberty, or property, without due process of law." That clause, noted Justice Kennedy, has been extended to include "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."2 As the Court noted, the Supreme Court has long held that among these choices is the right to marry; thus, the right to marry is a fundamental liberty protected by the U.S. Constitution.

The Court drew from prior state court decisions, as well as prior decisions of the Court, to outline four central principles as to why the fundamental right to marriage protected by the Fourteenth Amendment applies with equal force to same-sex couples:

  • The right to personal choice regarding marriage is inherent in the concept of individual autonomy, and "[t]he nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."
  • The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Same-sex couples have the same right as opposite-sex couples to enjoy such an intimate association.
  • Protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Excluding same-sex couples from marriage conflicts with the central premise of the right to marry.
  • Marriage is a keystone of our social order and, as states have made marriage the basis for an ever-expanding list of rights, benefits and responsibilities, there is no basis upon which to differentiate between same- and opposite-sex couples with respect to this principle.

The Court also found the right of same-sex couples to marry also was supported by the Equal Protection Clause of the Fourteenth Amendment. As prior decisions of the Court have made clear, invidious sex-based classifications in the past have denied the equal dignity of men and women. As applied to same-sex couples, the laws banning the right to marry "are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right."3

Finally, the Court addressed the full-faith and credit issue of whether states must recognize marriages performed elsewhere. On that issue, Justice Kennedy noted: "[b]eing married in one State but having that valid marriage denied in another is one of 'the most perplexing and distressing complication[s]' in the law of domestic relations."4 Such disruption caused by having conflicting recognition of a spousal relationship that varied from state to state "is significant and ever-growing."5

Hence, the Court held that same-sex couples may exercise the fundamental right to marry in all states. The Court also held that no state may refuse to recognize a lawful same-sex marriage performed in another state.

Understanding the religious objections to same-sex marriage, the Court went out of its way to stress that individual citizens are free to disapprove same-sex marriage in the context of their faith, and to abide by personal principles regarding "the family structure that they have long revered."6 Acknowledging this First Amendment right for individuals, however, does not mean that a state may "bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex."

The Dissenting Opinions

In a rare move, all four dissenters—Chief Justice Roberts, and Justices Scalia, Thomas, and Alito—drafted separate dissenting opinions. Chief Justice Roberts wrote the main dissent, which was joined by Justices Thomas and Scalia. In that dissent, Roberts argued that "[a]lthough the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not."7 He concluded by stating:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.8

Echoing the Chief Justice, the other dissenters also stressed the argument that the democratic process on the issue of same-sex marriage had worked to date, and that the majority's decision removed a public-policy decision from the broader electorate. In a derisive footnote to his own dissent, Justice Scalia commented that if he had set forth the rationale adopted by the majority, he would "hide his head in a bag."9

In a similar vein, the Chief Justice and Justices Thomas and Alito questioned the majority's comments that the First Amendment would continue to protect religious objectors to same-sex marriage. For his part, Chief Justice Roberts noted that the majority's suggestion that "religious believers may continue to 'advocate' and 'teach' their views of marriage," ominously left out the word "exercise" with respect to those religious beliefs.10 He further noted the possibility, acknowledged by the Solicitor General at oral argument, that some religious institutions may be in danger of losing their tax-exempt status if they discriminate against married same-sex couples.

Justice Thomas, citing amicus briefs filed in the case, argued the decision would have "unavoidable and wide-ranging implications for religious liberty." It is "all but inevitable," argued Justice Thomas, that churches will be confronted with demands to "participate in and endorse civil marriages between same-sex couples."11 In his own separate dissent, Justice Alito expressed his fear that, while individuals opposed to same-sex marriage may be able to "whisper their thoughts in the recesses of their homes," such individuals would be "labeled as bigots and treated as such by governments, employers, and schools."12 Justice Alito even accused the Court of giving ammunition to those who would vilify objectors to same-sex marriage, by comparing laws denying recognition of same-sex marriage to laws that denying equal treatment for African Americans and women.

Whether religious institutions and religious employers will face consequences for declining to recognize or give equal status to same-sex marriages—even if they maintain a First Amendment right in the abstract to oppose such marriages—is thus likely the next frontier of the legal battle. However, it is important to remember that the Fourteenth Amendment restricts government action, not private action. Therefore, it is not at all clear that private employers must recognize same-sex marriages for all purposes. Indeed, the Supreme Court's decision in Hobby Lobby13 indicates that under the Religious Freedom Restoration Act, a government cannot enforce its laws in a way that impairs an employer's religious freedom (even the religious beliefs of the owners of a for-profit corporation), without a compelling government interest and in the least restrictive manner. Thus, we can expect continued battles over whether employers can discriminate against employees in same-sex marriages in ways that do not otherwise conflict with applicable federal or state law.

The Implications for Employers

While the ink still is drying on the Obergefell opinion, one thing is clear: distinguishing between, on the one hand, "marriage," and, on the other hand, "same-sex marriage," no longer is permissible in light of Obergefell. Marriage is to be considered marriage for all.

Employers navigating this issue should undertake a review of their policies and benefits plans and make sure they are treating all married couples equally. This is true with regard to not only leave policies and non-discrimination provisions, but also benefit plans, retirement plans, and other benefits offered to spouses of employees. Past practices of, for example, requiring differing forms of proof of marriage, depending upon whether the marriage involved same- or opposite-sex couples, likely no longer will be permissible following Obergefell.

Some employers may want to consider whether to reconsider or modify prior practices that afforded benefit coverage for domestic partners. Now that all employees are free to marry their domestic partners (assuming they are not already married to someone else), there may no longer be a need for domestic partner coverage, with its inherent tax and payroll difficulties.

After United States v. Windsor, the Internal Revenue Service and Department of Labor issued guidance and requirements for coverage of same-sex spouses, where retirement plans and other benefit plans may have specified recognition of opposite-sex marriages.14 Employers located in states that have not previously recognized same-sex marriages may have ignored this guidance. Those employers should review their plans now and make sure that their plans are compliant with the law as now interpreted. In this regard, while it is clear that tax-qualified retirement plans must recognize same-sex marriages for purposes of spousal rights, it is not at all clear that same-sex marriages must be recognized for plan-based rights that are not mandated by law, such as the right to spousal coverage under welfare benefit plans.


1 Richard Hodges became the Director of the Ohio Department of Health on August 11, 2014, replacing Interim Director Lance Himes. Therefore Himes—not Hodges—is listed as the defendant in the lower-court action.

2 Obergefell v. Hodges, 576 U.S. __ (2015) (Kennedy, J., Slip Op. at 10).

3 Slip Op. at 22.

4 Slip Op. at 27.

5 Slip Op. at 28.

6 Slip Op at 27.

7 Roberts, C.J. (dissenting), Slip. Op. at 2.

8 Id. at 29.

9 Scalia, J. (dissenting), Slip. Op. at 7, n.22.

10 Roberts, C.J. (dissenting), Slip Op. at 28.

11 Thomas, J. (dissenting), Slip. Op. at 15.

12 Alito, J. (dissenting), Slip. Op. at 7. Particularly in light of the dissenting Justices' concerns about backlash against religious persons, employers also must be mindful of their Title VII and state law obligations to attempt to offer reasonable accommodation to those whose religious beliefs create conflicts with their work duties if such accommodations can be made without creating undue hardship on the employers' businesses.

13 See Denise M. Visconti, Jane Ann Himsel, Darren E. Nadel and William E. Trachman, Supreme Court Rules in Favor of Hobby Lobby, Opens Door to Religious Objections to Statutes Covering Employers, Littler Insight (July 7, 2014).

14 See William Hays Weissman, Susan Katz Hoffman, GJ Stillson MacDonnell and Finn Pressly, IRS Provides FICA Reporting, Withholding, and Other Guidance Regarding Married Same-Sex Couples, Littler Insight (Oct. 7, 2013); Susan Katz Hoffman, Treasury Department Issues Guidance on Application of Same-Sex Marriage Ruling to Retirement Plans, Littler Insight (Apr. 9, 2014).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Denise M. Visconti
William E. Trachman
Jane Ann Himsel
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions