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Questions mount in the aftermath of Supreme Court’s much celebrated, historical decision

June 27th, 2013  |  Pamela Wolf

As the confetti falls to the floor in the aftermath of the Supreme Court’s historic conclusion yesterday that lawfully married same-sex couples are entitled to equal protection of the federal laws, questions about exactly what this means in real terms are beginning to pile up like the empty champagne glasses after the long night of celebration.

In a greatly anticipated and deeply divided opinion, the High Court ruled that lawfully married same-sex couples are entitled to the equal protection of the laws pursuant to the Fifth Amendment to the Constitution, and thus, the Defense of Marriage Act (DOMA) must fall (United States v Windsor, June 26, 2013, Kennedy, A). “The federal statute is invalid, for no legitimate purpose overcomes [its] purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” wrote the majority.

Although they longed to marry, noted the Court, the two women at the heart of the case were unable to do so in the United States. In 2007, they were married in Ontario, Canada. In time, “[t]he limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion,” the Court observed.

President lauds the decision. Applauding the Supreme Court’s decision to strike down DOMA, President Barack Obama said what was really no more than what DOMA’s proponents had in mind: “This was discrimination enshrined in law.” The history and text of the beleaguered statute, as the Supreme Court majority so painstakingly observed, made that clear. “It treated loving, committed gay and lesbian couples as a separate and lesser class of people,” the President said, echoing the High Court. He has instructed the Attorney General to work with other members of his Cabinet to review all relevant federal statutes with the aim of ensuring that the decision, including its implications for federal benefits and obligations, “is implemented swiftly and smoothly.”

Homeland Security Secretary Janet Napolitano similarly tied the decision to federal benefits. “This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits,” she said. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Making it work on the ground. The question is just how “swiftly and smoothly” the transition to new benefits rules will take place in the management and HR offices of American employers. The questions are mounting at a pretty rapid pace as benefits and HR experts mentally try to tick through and determine how many of the 1,000-plus federal laws touch by DOMA will now require changes in workplace policies.

Perhaps looming most formidably is the question of how federal laws such as COBRA, ERISA and the FMLA will now apply to workers and their family members living in states that do not permit same-sex marriage. After all, federal benefits laws were developed with the understanding that the regulation of marriage is a matter left to the states, which is still the case, except for when the state singles out a particular class of married couples for unequal treatment, of course. As the Supreme Court noted, 12 states and the District of Columbia now permit same-sex marriage; that means the great majority of employers are facing some pretty daunting questions about exactly who is entitled to spousal- and family-related benefits and protections under federal law. It could be messy:

• How will these and other federal laws now apply to same-sex couples lawfully married elsewhere who are working or living in a state that does not permit same-sex marriage?
• What about national employers whose lawfully married same-sex workers move between states that do and do not permit same-sex marriage?
• Do same-sex couples have the benefit of common-law marriage in states that permit same-sex marriage and also recognize common-law marriage?
• If a same-sex couple recognized as married under common law in one state moves to another state that recognizes common law marriage, but not same-sex marriage, are they entitled to spousal- and family-related benefits and protections afforded under federal law?

The Sec. 2 twist. And then there is the matter of Sec. 2 of DOMA, which was not involved in the Windsor case. Under Sec. 2, “No State…shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State … or a right or claim arising from such relationship.”

The Respect for Marriage Act, reintroduced on June 26 in the House by Rep. Jerrold Nadler (D-NY) and in the Senate by Sen. Dianne Feinstein (D-Cal), would alleviate this problem by repealing what remains of DOMA.

How much scrutiny applies? Other unanswered questions may have far-reaching impact going forward. For example, does anyone know if the High Court actually decided that a heightened level of scrutiny applies to same-sex couples or homosexuals as a class? The Court appears to have applied the standard used in its 1969 Rumer v Evans holding: “‘[d]iscriminations of an unusual character especially require careful consideration.”’ But the Court fails to address head-on or even mention expressly the question of whether some sort of heightened scrutiny applies. (Justice Scalia, in his dissenting opinion, points to this omission, noting that he would have applied the lowest level of scrutiny — rational review.)

And yet, the question is one that was at the heart of the case below in the Second Circuit, which determined that intermediate scrutiny applied because homosexuals are a quasi-suspect class. This issue has a huge impact on the level of protection afforded members of the LGBT community going forward.

In any event, there is little doubt that the Court’s holding will pave the way for greater federal antidiscrimination protections based on gender orientation and gender identity, whether by more expansive interpretation of existing federal law, new laws, or application of a new “careful consideration” level of scrutiny.

So many questions….just one more: Will Congress again pursue legislation with such an expressly discriminating intent?

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