On June 26, 2015, the U.S. Supreme Court removed a cloud of uncertainty for same-sex couples when it ruled, in the landmark decision of Obergefell v. Hodges, that the equal protection and due process clauses of the Fourteenth Amendment require all states to issue marriage licenses to same-sex couples seeking to marry and to recognize same-sex marriages lawfully performed in other states. We previously discussed the ruling in our blog post, Same-Sex Marriage Decision: Uniformity in All States. However, as discussed below, the Obergefell ruling left at least two unanswered questions.

Retroactivity

Justice Kennedy’s opinion for the majority in Obergefell did not state whether the decision should be applied retroactively. Retroactive application could require employers to revisit their past practices in providing employee benefits to same-sex couples. To date, no guidance has been issued by the IRS or other federal agencies to assist employers in this respect. Some news outlets have reported that the Social Security Administration intends to apply the Obergefell decision retroactively, but to date no official guidance has emerged.

The retroactivity conundrum is highlighted in at least two lawsuits initiated in Federal courts over the past year that challenge employers' denials of health benefits to the same-sex spouses of employees.

• In Cote v. Wal-Mart Stores Inc., an employee sought repeatedly to have her same-sex spouse added to her health insurance but was denied. While Wal-Mart did extend benefits to same-sex spouses in the wake of the Windsor decision, the employee and her spouse had accumulated significant medical bills prior to Windsor. The employee is challenging Wal-Mart’s pre-Windsor denials and is seeking class-action status for the suit.

• In Considine v. Brookdale Senior Living, an employee’s request to have her same-sex spouse added to her health plan was denied because Brookdale Senior Living did not offer health insurance coverage to same-sex spouses. After requesting briefs in mid-July on the impact of the Obergefell decision, the court recently sent the parties to arbitration based on an arbitration clause in Ms. Considine’s employment agreement.

In both of these cases the U.S. Equal Employment Opportunity Commission (“EEOC”) found probable cause that the defendants had discriminated against the plaintiffs on the basis of their gender, a theory the EEOC has advanced in such cases since 2012.

Some courts interpreting state law have already found in favor of the retroactive recognition of same-sex marriages, including a federal court in Alabama and a state court in Pennsylvania. The Alabama case involved a wrongful death suit where state law required damages to be distributed under the laws of intestate succession. The plaintiff prevailed in having his same-sex marriage recognized retroactively and received the proceeds of the suit, even though the marriage ceremony was performed in 2011 and the plaintiff’s same-sex spouse died that same year, which was before Alabama recognized same sex marriage.

In the Pennsylvania case, the plaintiff sought to receive spousal death benefits from various benefits providers, inheritance tax treatment as a spouse, and access to a jointly-owned safety deposit box following the death of her common-law same-sex spouse. Finding in the plaintiff’s favor, a state judge recognized the 2001 same-sex common law marriage despite the fact that it was not recognized under state law when celebrated, and the plaintiff’s same-sex spouse died before same-sex marriage was recognized in Pennsylvania.

Self-Insured Health Plans

Another lingering question concerns Obergefell’s effect on employers that sponsor self-insured health plans. After Obergefell, will state and/or federal anti-discrimination laws require those plans to offer benefits to same-sex spouses? ERISA generally preempts state regulation of self-insured health plans, and there is nothing in ERISA or other federal law prohibiting discrimination based on sexual orientation. Obergefell does not appear to apply. However, as noted above, the EEOC has taken the position that discrimination against an employee based on the employee’s sexual orientation equates to discrimination based on gender. The EEOC’s approach is currently being tested in the courts. In the meantime, any employer that elects not to offer self-insured medical benefits to spouses of same-sex couples risks attracting the attention of the EEOC.