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By a narrow majority, the Supreme Court of the United States ruled in Obergefell v. Hodges, 576 U.S. __ (2015), that States must permit marriages between same-sex couples on the same terms accorded to opposite-sex couples. At the same time, the Vice President of the European Commission, FransTimmermans, has said same-sex marriage should be legal throughout Europe, giving backing to campaigners who argue that the rights granted to a same-sex couple in one state should be maintained if they move to another European country, regardless of local laws.

The recognition in the US that marriage is a fundamental right for same-sex couples and that barring same-sex couples from marriage violates constitutional principles of equality is a profound victory for same-sex couples and their families.  One might assume that Obergefell secures to same-sex couples not only the ability to marry but also all the rights and benefits we associate with marriage.  But this question, like marriages themselves, is not so simple.

First, by definition, the ability to marry affects only those legal rights and responsibilities that are explicitly tied to marital status.  Second, Obergefell’s requirement that marriages between same-sex couples be recognized applies primarily to government actors and does not necessarily impact the private action of non-governmental entities.  Third, the implementation of Obergefell’s mandate may not be entirely smooth, potentially leaving same-sex couples without the protections that Obergefell seems to guarantee.

Laws Tied to Marital Status.  As the Court recognized in Obergefell, “while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits and responsibilities.”  Of particular importance to many same-sex couples, adoption laws in some States prohibit adoption by unmarried couples or prohibit an unmarried person from adopting his or her partner’s biological children as a step-parent or co-parent.  After Obergefell, these laws should no longer form an obstacle to adoption for same-sex couples who choose to marry.  A State that wished to prevent same-sex couples from adopting might try to amend its laws to explicitly bar same-sex couples from adopting.  Obergefell does not address the question of whether same-sex couples must be permitted to adopt children, but it may be difficult for such a law to withstand a legal challenge.  (The last State law to explicitly bar lesbians, gays, and bisexuals from adopting was ruled unconstitutional by a State court in 2010).

Many protections critical to same-sex couples and their families – including protections against discrimination in employment and housing – are typically not tied to marital status.  In the many states where employers and property owners are free to discriminate on the basis of sexual orientation, Obergefell does not provide same-sex couples or their families with additional protections.

Private ActorsObergefell means that State governments must make marriage available to same-sex couples.  It does not mean that individuals and entities acting in a private capacity must accommodate or support marriage for same-sex couples (though existing state or federal law may impose certain obligations).  Obergefell does not create an obligation for a religious officiant to conduct a religious marriage ceremony for a same-sex couple.

Obergefell may mean that some private employers must now offer certain employee benefits to married same-sex couples that they did not offer in the past.  The benefits a particular employer must provide requires a complex analysis based on the nature and size of the employer, the nature of the benefit at issue, State laws, and contractual obligations.  In addition, private entities that receive funding from or otherwise contract with the federal government may be subject to additional non-discrimination obligations.

The potential impact of Obergefell on businesses and other non-governmental actors may be further complicated by last year’s Supreme Court decision, Burwell v. Hobby Lobby, 573 U.S. __ (2014), in which the Court ruled that a closely held corporation need not offer contraception coverage required by federally mandated health care plans if doing so would violate the religious beliefs of the corporation’s principals.  The challenge was based on the federal Restoration of Religious Freedom Act, which purports to limit the ability of government to “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  42 U.S.C. § 2000bb-1(a).

Implementation.  Even where the legal implications of Obergefell seem clear, implementation may not be smooth.  Several county clerks (in Kentucky, South Dakota and Texas at this writing) have refused to comply with Obergefell.  Rather than issue marriage licenses to same-sex couples, these clerks have stopped issuing marriage licenses in their counties altogether.  Though marriage for same-sex couples will likely be delayed in these counties for only a short time, the clerks’ actions are a reminder that putting the law into practice involves individuals and agencies who – at least in the short term – can frustrate the process.

Katherine Keating

Counsel, Bryan Cave LLP, San Francisco

Joseph Smallhoover

Partner, Bryan Cave LLP, Paris

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