Although it has been more than two years since the Supreme Court of the United States (“SCOTUS”) issued its Obergefell v. Hodges opinion and more than four years since its US v. Windsor opinion, the law is still evolving as it concerns same-sex marriage.  It is important for employers who wish to minimize their litigation exposure to determine what “rights, benefits, and responsibilities” same-sex spouses should be extended in the same manner as opposite-sex spouses.  While SCOTUS has indicated its belief that Obergefell’s holding and application are clear, recent rulings indicate otherwise . . . which means employers would be well-advised to stay tuned. 

On June 30, 2017, the Supreme Court of Texas issued a unanimous opinion in Pidgeon v. Turner, a case that focuses on whether same-sex spouses are entitled to the same employee benefits as opposite-sex spouses.  Not unlike other jurisdictions, the State of Texas and the City of Houston each have their own “DOMA” – a Defense of Marriage Act, which provides essentially that only a lawful union between a man and a woman will be recognized as a marriage.  After Windsor, the City of Houston extended benefits to same-sex spouses of City employees.  Two Houston citizens filed suit, arguing that the City was “expending significant public funds on an illegal activity” because the Mayor’s decision to make such expenditures violates Texas’s and the City of Houston’s DOMAs and that, while Obergefell may require recognition of same-sex marriage, the federal government “cannot commandeer state spending decisions” by “requir[ing] States to give taxpayer subsidies to same-sex couples.”

The state district court issued a temporary injunction that prohibited the City of Houston from providing employee benefits to same-sex spouses. The state appellate court overturned and remanded for further proceedings in light of intervening opinions: specifically, Obergefell as well as a ruling of the United States Court of Appeals for the Fifth Circuit in De Leon v. Abbot, which held that – per Obergefell – the Texas DOMA was unconstitutional.  (Notably, since the De Leon ruling, benefits have been extended by the State of Texas to same-sex spouses of state employees.)  The Supreme Court of Texas granted review in Pidgeon and clarified that, while the De Leon opinion may be helpful or persuasive concerning whether the DOMAs at issue violate the United States Constitution question, the opinion was not binding on Texas state courts.  However, the Supreme Court of Texas declined to instruct the lower state courts with respect to how to construe the effect of Obergefell on the case at hand, saying, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.”

A few days before the Pidgeon opinion was issued, SCOTUS issued a per curiam opinion in Pavan v. Smith, holding that an Arkansas birth certificate statute was unconstitutional per the Court’s ruling in Obergefell.  The Court noted that the Arkansas statute categorically provided that a male husband would be listed on a birth certificate regardless of whether the husband was biologically related to the child unless the couple took affirmative steps otherwise (if, for instance, the mother, husband, and biological father submitted affidavits vouching for the biological father’s paternity).  The Court took issue, therefore, with the State’s defense that birth certificates concerned the relationship between the child and its biological parents rather than the spousal relationship between a husband and wife.  Noting that the Obergefell opinion specifically referenced birth and death certificates as some of the “rights, benefits, and responsibilities” to which married couples were entitled, the Court held that the Arkansas state statute was unconstitutional because “differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage[.]’”

What may be most interesting about the Pidgeon and Pavan opinions is a question concerning what the future holds as this area of law evolves.  Recently appointed Justice Gorsuch authored a dissent in Pavan, in which Justices Thomas and Alito joined, that focused on the fact that Obergefell did not speak directly to the Arkansas statute, nor did it address the constitutionality of “a birth registration regime based on biology[.]”  In fact, the dissent challenged the appropriateness of a summary reversal, noting a belief that rational state interests in tracking biological parenthood of children do not run afoul of Obergefell’s holding. Justice Gorsuch’s dissent comes less than three months after joining the Court, and the Court has granted review to another same-sex marriage case on next year’s docket.  Therefore, while the majority’s opinion in Pavan might suggest that the plaintiffs in Pidgeon stand little chance of success, the dissent in Pavan may indicate some sympathy to the view that the reach of Obergefell is less than certain.  What does that mean for employers?  The task of determining what is – or is not – within the “constellation of benefits” linked to marriage that should be extended to same-sex couples warrants careful consideration and the assistance of experienced counsel.