The law on same-sex marriage has evolved more quickly than almost any other social issue. In 2003, the Commonwealth of Massachusetts was the first state to permit same-sex couples to marry (Goodridge v. Dep’t of Public Health, 440 Mass. 309 (Mass. 2003). Barely ten years later, a dozen more states had either passed same-sex marriage legislation or struck down laws prohibiting it. Last year, the US Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA) and ruled that the federal government must recognize the marriages of same-sex couples married in states that permit them to marry (United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013)). In 2015, the Supreme Court will again rule on the issue, this time deciding whether same-sex couples have a constitutional right to marry and have their marriages recognized by state law. Practical Law asked Anna M. Pohl for her thoughts on the Supreme Court's decision to review the same-sex marriage cases and its implications for employers.

Anna is a Senior Legal Editor on Practical Law's Labor & Employment team and co-author of Marriage, Civil Unions and Alternative Relationships: The Law Today (2013 ed.). She is a former Senior Trial Attorney at the Equal Employment Opportunity Commission and Chair of the New York City Bar Association's Committee on Lesbian, Gay, Bisexual and Transgender Rights.

Today, 36 states, plus the District of Columbia, permit same-sex couples to marry. These states, plus Missouri, also recognize as valid the same-sex marriages performed in other states. In seven other states, a state or federal judge has ruled that banning same-sex marriage is unconstitutional but the rulings are stayed pending their appeals. Three states still have state constitutional bans on performing or recognizing same-sex marriages where lawsuits challenging the bans are pending but no rulings have been issued. For the status of same-sex marriage in individuals states, see Box, Same-sex Marriage in the States.

In four states (Michigan, Kentucky, Ohio and Tennessee), a federal district judge ruled in favor of allowing or recognizing same-sex marriage, but the US Court of Appeals for the Sixth Circuit overturned these decisions. The Sixth Circuit relied on a one-line summary order from a Supreme Court appeal in 1972 (Baker v. Nelson, 409 U.S. 810 (1972)), and held that it prevented the court from recognizing a federal constitutional right to marriage for same-sex couples (DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)) (consolidating the appeals of the four District Court decisions).

On January 16, 2015, the Supreme Court granted certiorari to review these four cases (Obergefell v. Hodges, No. 14-556, ) (Ohio); Tanco v. Haslam, No. 14-562, ) (Tennessee); DeBoer v. Snyder, No. 14-571, ) (Michigan); Bourke v. Beshear, No. 14-574, ) (Kentucky).

The Supreme Court consolidated the four cases and listed two questions to be decided:

(Obergefell v. Hodges, No. 14-556, .)

Same-sex couples and supporters of same-sex marriage hope that the answer to the first question will be yes, that the US Constitution requires that same-sex couples be allowed to marry in every state, just as different-sex couples are allowed to marry. This would effectively legalize same-sex marriage in the remaining states that outlaw it.

The second question addresses an issue not answered in last year's Windsor decision: whether a state must give "full faith and credit" to a same-sex marriage legally performed in another state. The vast majority of heterosexual couples are considered married in all states if they were legally married in any state. For example, many states prohibit marriages under age 18 absent parental permission, but heterosexual marriages of young people in New Hampshire (where brides can marry as young as 13 and grooms can marry as young as 14) are recognized in all other states.

Section 2 of DOMA, however, is still good law and allows states to refuse to recognize any same-sex marriages legally entered into in another state. Although DOMA was not specifically mentioned in the Court’s order, the answer to the second question posed above should address whether this section of DOMA is constitutional.

The parties’ briefing will not be concluded until mid-April, 2015 and oral argument will be scheduled shortly afterwards. The Supreme Court finishes its 2014-2015 term at the end of June 2015, so a decision should be issued by then. The Court frequently (though not always) issues decisions in the most high-profile cases on the last few days of the term.

This decision could answer once and for all whether same-sex couples have the same right to marry as heterosexual couples. It also could clarify whether the few remaining states that do not currently permit same-sex couples to marry would be required to recognize marriages performed in other states. Advocates for marriage equality have been working toward this result for many years and are anxiously awaiting what they hope will be a ground-breaking decision in favor of gay rights.

After last year's Supreme Court decision in Windsor, the federal government conducted an exhaustive review of statutes and regulations where some benefit, right or responsibility turns on an individual's marital status. This included a number of federal laws related to employment, such as the:

An employee's marriage may have at least some effect on her workplace, in one or more of the following ways:

From an employee benefits perspective, qualified retirement plans must recognize same sex marriages as of:

Practical Law's Employee Benefits and Executive Compensation service has a variety of resources available to help comply with the Windsor decision and related guidance. For example, see:

An employer's definition of spouse must also comply with state and federal leave laws. The FMLA currently defines "spouse" as a husband or wife recognized under the laws of the state where the couple lives. However, the US Department of Labor has proposed changing the definition of spouse to eliminate the requirement that the state in which a couple lives must recognize their marriage and to implement a rule that a spouse is a spouse if the couple was legally married in any state that permits same-sex marriage. See Legal Update, The DOL's Marriage Proposal: Notice of Proposed Rulemaking to Redefine Spouse under the FMLA.

Practical Law's Labor & Employment service has resources available on leave laws. For example, see:

Finally, employers may be vulnerable to discrimination claims if they treat same-sex married couples differently than different-sex married couples. For examples of cases where plaintiffs have alleged sex discrimination claims related to their same-sex marriage, see these Legal Updates:

Practical Law's Labor & Employment service has a variety of resources to help employers avoid costly discrimination claims, including these Practice Notes:

For purposes of complying with employment law, employers probably do not need to take any action now. However, reviewing policies to ensure compliance with existing laws related to discrimination and leave is always a good idea. Practical Law will continue to monitor developments in this area.

For purposes of complying with employee benefits law, qualified retirement plans must be operated in a manner reflecting the outcome of Windsor as of June 26, 2013. For more information, see Practice Note, Impact of US v. Windsor and Related Guidance on Qualified Retirement Plans and Impact of US v. Windsor and Related Guidance on Qualified Retirement Plans Checklist.