Employee Benefits Compliance

More States Must Allow Same-Sex Marriages, per Supreme Court and 9th Circuit

Quick Summary

  • On Oct. 6, 2014, the U.S. Supreme Court declined to review same-sex marriage appeals involving cases from Virginia, Utah, Oklahoma, Indiana and Wisconsin.
  • Same-sex marriage may take place in these states, effective immediately.
  • This decision may affect six other states that currently do not permit same-sex marriage.
  • Employers in these states probably must have special enrollment periods in October to allow same-sex spouses of eligible employees to enroll for a November 1 effective date.
  • A separate  9th circuit decision held that Idaho’s and Nevada’s state law bans on same-sex marriage are unconstitutional


U.S. Supreme Court

On Oct. 6, 2014, the U.S. Supreme Court announced that it will not review seven Circuit Court of Appeal decisions (from the 4th, 7th and 10th circuits) that had struck down state laws prohibiting same-sex marriage in Utah, Oklahoma, Virginia, Wisconsin and Indiana.  This means that the lower court rulings stand and same-sex marriages are permitted in the affected states, effective immediately.  States that already recognize same sex marriage (e.g., California) are not affected by this.  (In the affected states, same-sex marriages had been put on hold while the cases were being appealed to the U.S. Supreme Court.)

Ninth Circuit

In a separate action, a three-judge panel of the Ninth Circuit held that state laws prohibiting same-sex marriages in Idaho and Nevada are unconstitutional because they violate the right to equal protection.   This ruling likely applies to Alaska, Arizona and Montana—three other Ninth Circuit states that ban same-sex marriage.  The Ninth Circuit court applied “heightened scrutiny” and concluded that the states failed to demonstrate that prohibiting same-sex marriage furthered any legitimate government interest. The holding applies immediately in Nevada, but is partially delayed in Idaho according to an EBIA article, because Idaho officials have indicated that they intend to appeal the decision to the full Ninth Circuit.

Note: These are court actions, not new laws that were enacted or new regulations that were issued, so we do not have the level of detail we would have if there were laws or regulations on the issue.  Additional guidance from the federal and states governments will likely be forthcoming.

Next Steps for Employers

Since many of our clients are in states that already recognize same-sex marriage, we have put “Next Steps for Employers” first and then “Background,” just in case some employers who are not affected by the Supreme Court’s action (actually, non-action) or the Ninth Circuit decision  don’t want to read all the Background information.

  • Employers in states that already recognize same-sex marriage:  No change.  You don’t even have to read the rest of this article if you don’t want to, unless you have employees in other states and you weren’t offering coverage to same-sex spouses there.
  • Employers in Nevada and in states in the 4th, 7th and 10th circuits (see list of states below):  

o   Effectively immediately, same-sex marriages are permitted.  Employers must treat same-sex spouses the same as opposite-sex spouses.

o   Employers probably will need to offer a special enrollment period this month so same-sex spouses can enroll and have coverage effective the first of November.

o   Some carriers have already notified plan sponsors that they will have special open enrollment periods in October, for same-sex spouses.  Self-funded plans should check with their TPAs.  Both insured and self-funded plans should notify employees that same-sex spouses of eligible employees can enroll on the same terms and conditions as applicable to opposite-sex spouses.

o   Employers should not plan to wait until the next open enrollment, unless the government issues guidance allowing that delay (which seems unlikely).

  • States in 4th, 7th and 10th circuits:

o   4th Circuit: Maryland, Virginia, West Virginia, North Carolina and South Carolina

o   7th Circuit: Illinois, Indiana and Wisconsin

o   10th Circuit: Colorado, Kansas, Oklahoma, Utah, Wyoming and New Mexico

  • Employers in Idaho, Alaska, Arizona and Montana

o   No doubt will soon need to treat same-sex spouses the same as opposite-sex spouses.  Highly likely their state laws prohibiting same-sex marriage also will  be held unconstitutional because they violate the right to equal protection.

Background on Same-sex Marriage Cases

Following the Supreme Court’s June 2013 ruling invalidating part of the federal Defense of Marriage Act (DOMA), a number of state and federal courts addressed same-sex marriage. Several courts ruled that state bans on same-sex marriage were unconstitutional, clearing the way for same-sex marriages to be permitted in those states.

These rulings were stayed—or put on hold—pending future appeals. Several of these rulings were appealed to the U.S. Supreme Court, although some are still pending in lower courts. In addition to the states noted above that are impacted by the Supreme Court’s decision on Oct. 6, Arkansas, Florida, Idaho, Michigan and Texas also have cases pending.

Impact of Supreme Court Decision

The Supreme Court’s decision not to weigh in on the same-sex marriage debate has been called surprising. While there has not yet been disagreement between federal appellate courts, it was widely expected that the Court would hear cases on this issue.

Because the rulings from the federal appellate courts stand, the U.S. Supreme Court’s decision not to intervene will impact a number of other states located in the federal circuits overseen by those appellate courts. These states are listed above.

With this action, the Supreme Court has currently declined to address the issue of same-sex marriage on a nationwide basis.