On April 29, the United States Supreme Court heard arguments in Obergefell v. Hodges.  This case addresses the question of whether there is a constitutional right to marry that transcends the historic power of states to regulate who can marry.  If you go to the website of the U.S. Supreme Court you can read and listen to the arguments including the questions posed by the justices.  It is an interesting argument once you get passed the first few minutes where there are a series of exchanges referencing older cases touching on the constitutional decisions.

But while we wait for a decision, the ground is already starting to shift in the world of employee benefits.  In recent years, many employers began to offer health care benefits to all “couples” regardless of whether their status had the title of marriage.  It creates problems because it requires the employer to define what is a “couple”.  For that reason most companies decided to restrict this benefit to gay couples only because they were ineligible to marry.

Obviously, much has changed.  Today 37 states have adopted some form of gay marriage or civil unions.  And complaints are being registered with human resource personnel along the lines of: “How is it that Samantha can cover her same sex significant other on her health benefits but I can’t cover my girlfriend of twenty years on our plan?”

Employers offered this coverage to same sex partners as a means of showing their progressive approach toward employee needs.  But now, what started as progressive has become divisive and employers don’t like it.  So, memos are starting to hit the desks of gay employees affording them a limited period of time to either marry their same sex partner or risk seeing the non-employees coverage terminated in states where same sex marriage and unions are now recognized.  As the Wall Street Journal reported on May 13, if the Supreme Court rules that there must be recognition of gay marriage or unions in all states, employers are going to be driven to insist that marriage or civil union is a condition for any form of spousal benefit.  Some concern has been expressed that this is forcing the gay employee to come “out” by making a public declaration of his relationship and therefore, his or her sexual orientation.

Another approach, as referenced above, is for the employer to attempt to define what constitutes a couple regardless of sexual orientation or marriage.  But needless to say, that is a slippery slope and ultimately leaves open questions such as when is a “relationship” formed, when is it over and how are these events defined as a matter of law.