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Tuesday, June 25, 2013

Tomorrow, Wednesday June 26th, the Supreme Court is expected to release two opinions related to same-sex marriage: Windsor v. United States – a constitutional challenge to Section 3 of DOMA and Hollingsworth v. Perry – a constitutional challenge to Prop 8.  [Additional background information may be found here.]

While same-sex marriage supporters wait anxiously for the rulings, employers are also waiting to see how these rulings may affect employee benefit offerings.  A broad ruling could mean that employers would need to provide benefits and protections to same-sex spouses immediately, though many commentators believe that the court will not rule broadly in either case (i.e. both cases could be dismissed for lack of standing).

If the court does overturn Section 3 of DOMA, many uncertainties for employers would still exist, such as what benefits and protections must be provided to same-sex spouses that married in one state but now live in a state that does not recognize same-sex marriage.  Due to Section 2 of DOMA (this section is not at issue in the current case), states are able to avoid recognizing same-sex marriages performed in other states under the Full Faith and Credit Clause.  If Section 3 is overturned, will Section 2 still be valid and enforceable? Will employers need to keep track of what states their employees were married in and what states they currently reside in and change benefits accordingly? We’ll just have to wait and see what SCOTUS says.

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