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A definitive ruling by the U.S. Supreme Court on states' rights to ban gay marriage could come as early as June 2015, experts say, bringing welcome relief for employers and their benefits management staffs.
Earlier this month, Kentucky and Ohio joined a growing list of states urging the Supreme Court to hear arguments on constitutional challenges to state-level laws denying marriage rights and benefits to gay and lesbian couples.
“The proceedings throughout the country have created a patchwork of inconsistent decisions resulting in uncertainty and confusion,” attorneys for Kentucky Gov. Steve Beshear said in the state's Dec. 9 brief, echoing similar pleas for a final ruling on the issue previously filed by officials in Michigan and Louisiana.
“The present status quo is unsustainable,” Ohio Attorney General Michael Dewine wrote in his Dec. 12 brief. “The country deserves a nationwide answer to the question — one way or the other.”
Since the beginning of the year, federal appeals courts have legalized same-sex marriage in 20 states, bringing the total number of states to provide gay and lesbian couples with equal marriage rights and benefits to 36.
Federal district judges have overturned statewide prohibitions on same-sex marriage in Florida, Mississippi, Missouri and Texas, but implementation of those rulings has been delayed pending appeals before the 5th, 8th and 11th U.S. Circuit Courts of Appeals.
“I think a lot of us have been amazed at how quickly things have moved in the last year,” said Julie Stich, research director at the Brookfield, Wisconsin-based International Foundation of Employee Benefit Plans.
As rapid as the national shift toward full marriage equality has been, Ms. Stich said the prolonged litigation over state-level bans on same-sex marriage has resulted in several practical complications for employers.
“There still are a number of questions hanging out there that employers would like to have resolved,” Ms. Stich said. “It would be nice to have a final answer of some sort, and to have some consistency in the law no matter where your company or your employees are located.”
Primarily, experts say the uneven availability of marriage rights and benefits for same-sex couples on a state-by-state basis generates additional layers of administrative complexity and tax obligations for multistate employers that voluntarily provide employee health care coverage and other spousal benefits to gay and lesbian couples living in states that do not recognize same-sex marriage.
“The main thing that we're hearing from employers is that they want a definitive decision on this,” said Sarah Bassler Millar, partner and vice chair of the employee benefits and executive compensation practice group at law firm Drinker Biddle & Reath L.L.P. in Chicago. “They want this issue resolved as a whole so that they can avoid the additional complexities of having distinctions between same-sex and opposite-sex spouses.”
Experts say the state briefs in support of a hearing before the Supreme Court are unusual in that each of the filing states recently prevailed in lawsuits challenging their respective marriage laws.
In November, a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati upheld statewide bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee — as did a U.S. District judge in Louisiana — breaking with decisions previously issued in four other federal appeals courts and more than two dozen U.S. District Courts.
Plaintiff couples in all five states have since petitioned the Supreme Court to consider their cases for review during the court's next private conference, scheduled for Jan. 9.
“It's unusual to see the winning party in these cases acquiesce a petition for a hearing before the Supreme Court,” said Camilla Taylor, the Chicago-based marriage project director at the Lambda Legal Defense and Education Fund, a nonprofit LGBT legal advocacy group. “I think these states are saying that there's so much confusion given this mismatch of laws around the country, and that it's hard on the states themselves” as well as the individual couples, families and employers involved.
If the court does elect to review one or more of the five lawsuits currently docketed for consideration, experts said it could render a final ruling on the constitutionality of state-level gay marriage bans as early as late June or early July of next year.
The combination of conflicting rulings among the federal appeals courts and the growing chorus of defendant states pleading for a final resolution on the legality of their current marriage laws has made an eventual ruling by the Supreme Court all the more likely, though not necessarily guaranteed.
“If you ask me if I think it's likely that the court will take this up during this year's term, I'd say the answer is maybe,” said Lisa Linksy, a New York-based partner at McDermott Will & Emery L.L.P. “It is absolutely a timely issue. The 6th Circuit ruling really has provided the opening for the court to step in and, once and for all, decide this issue and give us a national answer to the question of marriage rights for same-sex couples.”