Ruling undercuts states' defense

The U.S. Supreme Court’s June 2013 ruling in United States v. Windsor, while not invalidating any state laws banning same-sex marriage, appears to have substantially undermined states’ efforts to defend those laws in court.

Since October of last year, federal and state judges in Arkansas, Idaho, Michigan, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Virginia and Wisconsin have struck down those states’ bans on same-sex marriage, relying heavily on the Windsor ruling alongside previous Supreme Court decisions establishing marriage as a fundamental right protected by the U.S. Constitution.

However, state governments have been permitted in most cases to postpone issuing marriage licenses to gay and lesbian couples or updating their laws and regulations related to spousal benefits until after their separate appeals to higher courts have been exhausted.

For some state governments, that process is already well underway. Federal judges in the 4th and 10th U.S. Circuit Courts of Appeals were expected to decide by the end of June whether they uphold previous U.S. District Court decisions legalizing same-sex marriage in Oklahoma, Utah and Virginia, potentially setting the stage for another landmark ruling by the Supreme Court on the issue of same-sex marriage.

“I think it’s very likely that this question will eventually reach the Supreme Court, but it’s probably going to take a while,” said Todd Solomon, a Chicago-based partner at McDermott Will & Emery L.L.P. “If you look at where we were a year ago, the idea that we’d see the ruling that we have in some of the states was pretty unfathomable.”

If states’ same-sex marriage bans are ultimately struck down en masse by the Supreme Court — or gradually by the U.S. Circuit Courts, in the unlikely event that they all separately rule in favor of overturning the bans — the practical implications on state laws regarding spousal eligibility for group health care coverage would primarily be the concern of fully insured employers, since self-insured employers are largely not subject to state insurance laws.