Now that all couples can marry, will companies continue to offer benefits to same-sex partners?

The United States Supreme Court's landmark civil rights ruling in Obergefell v. Hodges, 576 U.S. ___ (2015) made marriage equality the law of the land. However, it may have a surprising impact on same-sex couples who are not married but share domestic partner benefits. Will employers start to rethink the wisdom of offering those benefits?

Evolving toward equality

As Justice Kennedy observed, "[i]n the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance." Obergefell, 576 U.S. at ___.

One aspect of this shift in public consciousness was the extension of employee benefits to the domestic partners of unmarried workers. For federal employees, the Defense of Marriage Act (DOMA) barred the federal government from recognizing same-sex marriages, even if they were valid in the state providing the marriage license. In 2013, the Court invalidated that provision of DOMA, holding that it "impermissibly disparaged those same-sex couples" that had chosen to sanctify their relationships via marriage. Id.

Even though the Court's opinion in U.S. v. Windsor provided some relief for same-sex couples, it did not settle the question of whether their right to marry was constitutionally protected. Domestic partner benefits allowed employers to give same-sex couples the same benefits as married opposite-sex couples.

Complex to administer

Todd Solomon, a Chicago-based partner at McDermott Will & Emery, says that the Obergefell ruling may have some "unanticipated consequences" for employers that offer domestic partner benefits. Those consequences depend, in part, on what kind of benefits a particular employer offers.

For some companies, now that couples are free to marry regardless of gender, domestic partner benefits may seem unnecessary. The companies "wrestling most" with the issue are those that offered benefits to same-sex couples out of a sense of fairness, observes Solomon.

"With no legal barriers to same-sex marriage, it's likely that some employers will eliminate their benefits for unmarried partners, which are complex administratively due to tax and other reasons." Solomon notes that employers that do eliminate those benefits could provide a grace period to allow same-sex couples to marry.

However, even that might not be enough for some couples who may view the loss of domestic partner benefits as a takeaway. Partners who have been together long-term without marriage rights have likely structured their lives to compensate for their legal status. They may have no interest in getting married "after years of being denied access to the institution of marriage."

Solomon notes that companies that have traditionally given domestic partner benefits to both same- and opposite-sex couples may "find themselves in a pickle" if they choose to withdraw them across the board. This may be "viewed as a takeaway by opposite-sex couples who have had no change in legal rights but have experienced a loss of coverage," says Solomon.

Future claims?

Solomon sees the potential for future claims against companies that continue to offer domestic partner benefits to same-sex couples but does not extend them to opposite-sex couples. Now that all unmarried couples have the right to marry, they are arguably similarly situated.

Solomon suggests that opposite-sex couples might bring reverse discrimination lawsuits against companies that do not extend domestic partner benefits to all. Although such suits have failed in the past, Solomon believes they might fare better in the wake of 50-state marriage equality.

Such claims, and others like them, are inevitable as Constitutional rights evolve. As Justice Kennedy notes in Obergefell, "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed." Id.