By Lori Welty and Megan Holstein
“What Happened?”: On October 6, the Supreme Court of the United States declined to hear 5 separate appeals arising from federal circuit court decisions holding that state bans of same-sex marriage were unconstitutional.
“Why Does It Matter?”: The practical impact of the Supreme Court’s decision to not hear these cases means that the circuit courts’ rulings of the unconstitutionality of the same-sex marriage bans stands as final legal rule, with no further appeal. Because the cases were brought in federal circuit courts, the decisions of those circuit courts are binding upon all of the states covered by that circuit.
“Which Circuits and States Are Affected?”
4th Circuit: Maryland (same-sex marriage already legal), Virginia, West Virginia, North Carolina, South Carolina
7th Circuit: Illinois (same-sex marriage already legal), Indiana, Wisconsin
10th Circuit: Colorado, Kansas, New Mexico (same-sex marriage already legal), Oklahoma, Utah, Wyoming
“How Should I Handle FMLA and State Leaves of Absence Now?”: What we can tell you, dear reader, is what we’re doing here at Reed Group. Starting now, when we administer FMLA and state leaves of absence for our outsourcing customers, we’ll treat same-sex spouses and marriages the same as opposite-sex spouses and marriages in the following new states: Virginia, West Virginia, North Carolina, South Carolina, Indiana, Wisconsin, Colorado, Kansas, Oklahoma, Utah, and Wyoming. Naturally, we’re also updating our signature LeavePro™ leave management software to encompass the new laws regarding same-sex spouses, and we’re updating LeaveAdvisor™ to reflect the new laws regarding same-sex spouses. (We included a shameless plug for LeaveAdvisor™ in our last blog post, if you want to know more and maybe sign up for a free trial.)
“Which States Already Had Same-Sex Marriage?”: The following states already permitted and recognized same-sex marriages before and without regard to the Supreme Court’s action: California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Missouri (recognizes same-sex marriages performed in other jurisdictions), New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
“Okay, But I’m Really, Really Into Leave Management. I Want More Info on The Decision, and What About That Ninth Circuit Ruling?”: Okay, discerning reader, we’ve got more for you! Read on!
The Supreme Court’s action
In all of the above-listed circuits, the courts had previously issued a “stay” which temporarily halted the ability of the local jurisdictions to grant marriage licenses to same-sex couples. This stay was lifted on October 6 in the 4th and 10th Circuit cases. The 7th Circuit (affecting Wisconsin and Indiana) has not yet acted but is expected to do so soon. Additionally, while the decision is binding on all states in the circuits (listed above), some of the impacted states also have temporary “stays” in effect which technically must be lifted before same-sex marriages can occur. It is anticipated that those stays will also be lifted any day now. However, Governors and Attorney Generals in some of the affected states have publicly stated that they will not oppose counties that begin issuing marriage licenses to same-sex couples prior to the lifting of the stay.
Several cases are still pending in other circuit courts regarding the constitutionality of same-sex marriage bans in other states, so it remains possible that this issue could eventually come before the Supreme Court again. For now, however, at least for states in the 4th, 7th, and 10th Circuit, same-sex marriage bans are unconstitutional and will not be enforced.
Ninth Circuit Rules in favor of same-sex marriage for Nevada and Idaho
In the wake of the Supreme Court’s action this week, the Ninth Circuit struck down Nevada and Idaho’s bans on same-sex marriage. The Ninth Circuit covers: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington, but only the bans against same-sex marriage in Idaho and Nevada were before the circuit court for decision. Parties to the Idaho and Nevada lawsuits can let the Ninth Circuit’s decision stand, seek review before the entire panel of judges, or petition the U.S. Supreme Court to consider the decision. Because of these options, the status of same-sex marriage in these states is not final and employers will want to stay up to date because each state’s status can change quickly.
“Is That All?”: It is for today, but this is an evolving situation, so we’ll be updating this blog as new rulings and legislative decisions are made.