The Supreme Court of the United States has ruled that the Equal Protection Clause of the 14th Amendment guarantees same-sex couples a fundamental right to marry, state laws to the contrary notwithstanding, and to have their marriages recognized by all the states. The case is Obergefell et al. v. Hodges, No. 14-556.
In 2013, the Supreme Court ruled in U.S. v. Windsor that § 3 of the federal Defense of Marriage Act, or DOMA, was unconstitutional. That section limited all federal benefits to heterosexual married couples. Section 2 of DOMA, which the Court left intact at the time, allowed states to not recognize same-sex marriages performed in other states.
Federal appellate courts have been invalidating states’ mini-DOMA laws ever since the Windsor ruling. The Obergefell decision puts the nail in the coffin of § 2 of the federal DOMA and all the remaining state mini-DOMA laws. Those states include:
- North Dakota
Court: States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the states have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.
Employers in the above states must now extend spousal benefits on a tax-free basis to same-sex couples. Caution: In light of this decision, benefits’ policies should be reviewed. Policies that define spouse to include only heterosexual couples should be amended to define spouse in a gender-neutral way.
Rule of thumb: Any spousal benefit provided to employees that’s tax-free for federal purposes should now be tax-free for state purposes. These benefits include:
- Employer-provided health insurance, including pretax deductions into cafeteria plans
- Dependent care assistance
- Tax-free under tax code section 132—no-additional-cost services, qualified employee discounts, spousal travel that is a working condition , qualified retirement planning services and access to on-site gyms.
Finally, provisions of final regulations issued under theAct, which define spouse in a gender-neutral way so as to encompass same-sex spouses, and which had been put on hold by a federal court in Texas, should now become operative in Texas, as well as Arkansas, Louisiana and Nebraska.