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California's Ban on Same-Sex Marriage Held Unconstitutional 
 

8/11/2010  By Todd A. Solomon and Brian J. Tiemann of McDermott Will & Emery LLP 
 
 

Update: An Aug. 16, 2010, stay by a three-judge panel of the 9th U.S. Circuit Court of Appeals put same-sex weddings in California on hold while it considers the constitutionality of the state's gay marriage ban.

The court ordered the opening brief due Sept. 17, 2010, the answering brief due Oct. 18, and the reply brief due Nov. 1.

Until the 9th Circuit rules on the appeal, same-sex couples can legally wed only in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C.

On Aug. 4, 2010, the U.S. district court for the northern district of California ruled in Perry vs. Schwarzenegger that California’s ban on same-sex marriage (Proposition 8) is unconstitutional because it denies same-sex couples the right to due process and equal protection of the laws as guaranteed by the Fourteenth Amendment to the U.S. Constitution.

Impact for Employee Benefit Plans

Employers will need to review their employee benefit plans to determine whether changes are necessary or desirable in light of the fact that same-sex couples in California may soon be able to legally marry . For instance, employers may need to prepare to revise eligibility descriptions in summary plan descriptions (SPDs) and enrollment forms to address the types of same-sex marriages eligible for spousal benefits. In addition, employers will have to be careful and specific in defining the term “spouse” in their benefit plan documents and SPDs.

More broadly, the California Insurance Equality Act already requires insurance plans to offer spousal equivalent benefits to registered domestic partners in California. Because this act remains intact regardless of the passage or repeal of Proposition 8, same-sex partners will continue to receive protection and coverage under insurance plans in the state, so long as they register their domestic partnership under California law.

However, it is important to note that the California Insurance Equality Act does not apply to self-funded plans, plans that are insured using insurance contracts issued outside the state of California or other types of employee benefit programs (such as qualified and nonqualified retirement plans).

History

Same-sex marriage was legalized in California in June 2008 after the California Supreme Court ruled that state laws limiting marriage to opposite-sex couples violated the state constitutional rights of same-sex couples. However, same-sex marriage was banned in the state a few months later after voters approved Proposition 8, an amendment to the California constitution that prohibits the state from legally recognizing same-sex marriages performed on or after Nov. 5, 2008, (the date on which Proposition 8 was approved by voters). The validity of Proposition 8 under the state constitution was upheld by the California Supreme Court in June 2009.

Although the ruling banned same-sex marriage going forward, the 2009 ruling notably held that more than 18,000 same-sex marriages performed in the state during the nearly five months that it was legal would continue to be valid and recognized for all purposes of state law.

Perry v. Schwarzenegger was filed by the American Foundation for Equal Rights on behalf of two same-sex couples who were denied the ability to marry after the passage of Proposition 8. This case was the first federal challenge to state laws banning marriages between same-sex couples. In finding that Proposition 8 violates the U.S. Constitution, the district court held that the ban on same-sex marriage “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

The defendants, the group Protect Marriage, immediately filed an appeal with the 9th U.S. Circuit Court of Appeals and requested that the district court grant a stay of its decision pending the outcome of the appeal. Thus, it is not clear whether same-sex couples will be able to marry again in California at this point. Currently, 40 states have enacted laws or approved constitutional amendments banning same-sex marriage. Regardless of the outcome of the appeal, the case is expected to be appealed to the U.S. Supreme Court.

Todd A. Solomon is a partner in the in the law firm of McDermott Will & Emery LLP and is based in the firm’s Chicago office. He focuses his practice primarily on designing, amending and administering pension plans, profit sharing plans, 401(k) plans, employee stock ownership plans, 403(b) plans, and nonqualified deferred compensation arrangements. Brian J. Tiemann is an associate in the firm's Chicago office and focuses his practice on a variety of employee benefits matters related to pension plans.

© 2010 McDermott Will & Emery LLP. All Rights Reserved.

This article should not be construed as legal advice.

Related Articles:

District Court Rulings on Same-Sex Marriage: Implications for Benefit Plans, SHRM Online Benefits Discipline, July 2010

Best-Practice Benefits for Same-Sex Couples, SHRM Online Benefits Discipline, July 2010

Amending Plan Documents to Recognize Same-Sex Spouses, SHRM Online Benefits Discipline, June 2010

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