United States: Employment Ramifications of The Massachusetts Supreme Judicial Court’s

The recent ruling by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health struck down as unconstitutional the ban on same-sex marriages in Massachusetts. The Court stayed entry of its decision for six months, however, in order to allow the legislature time to take appropriate action in light of the ruling. Thus, the ruling has no legal effect until April 17, 2004. Until the legislature acts, we will not know specifically how the ruling and any new legislation based on the ruling will affect the workplace. Nonetheless, Massachusetts employers should begin to review their existing benefit programs and employment policies to identify potential areas that may be affected by this ruling.

The plaintiffs in Goodridge were six same-sex couples who applied for and were denied marriage licenses in Massachusetts. The plaintiff couples alleged that the ban on same-sex marriage denied them equal protection and due process under the Massachusetts Constitution. In a lengthy decision written by Chief Justice Margaret Marshall, the Court concluded that the State failed to articulate a single "constitutionally adequate justification for limiting civil marriage to opposite-sex couples." As a result, the Court held "that barring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."

The legislature has a few options: (1) it could enact a law that would legalize same-sex marriage; (2) it could enact a law that affords same-sex couples some lesser right than marriage, such as the Vermont civil union law, although enactment of such a law would not be fully consistent with the Court’s ruling and would likely lead to further litigation; (3) it could circumvent the Court’s holding by amending the Massachusetts Constitution to specifically forbid same-sex marriage. Any constitutional amendment, however, would take at least two years to pass and require ratification by the general electorate. The legislature can also decline to act, in which case, effective April 17, 2003, Massachusetts town and city clerks may no longer deny marriage licenses to applicants solely because they are a same-sex couple and same-sex marriage will be legal in Massachusetts.

Legalization of same-sex marriages in Massachusetts will affect certain employee benefits and could also affect a number of employment policies. First, with respect to employee benefits, same-sex spouses will be entitled to the same benefits as existing opposite-sex spouses. A recent On the Subject published by MWE’s Employee Benefits Group addresses these issues. In addition, employers who currently maintain domestic partnership benefit programs should review those programs to assess the impact that legalization of same-sex marriage may have on those programs. For example, some domestic partnership programs define eligible domestic partners as those who are living in a committed relationship but are denied the legal right to marry. If same-sex domestic partners are afforded the legal right to marry, they may no longer qualify for benefits under programs utilizing such eligibility criteria. Employers who maintain such domestic partnership programs will have to decide whether to terminate them and thereby require employees and their same-sex domestic partners to legally marry in order to qualify as a "spouse" under existing benefit programs, or to modify their existing domestic partner programs to expand the eligibility criteria. Employers who decide to eliminate domestic partner benefits will have to decide further whether to grandfather existing domestic partner relationships and allow them to retain their existing eligibility for benefits.

Second, with respect to employment policies, employers should review existing policies that afford different benefits or different treatment on the basis of marital status. Without knowing precisely what the legislature will do, employers should anticipate that same-sex spouses will be entitled to the same benefits and treatment under workplace policies as existing opposite-sex spouses. In addition, employers should evaluate whether current policy language should be revised to reflect the legality of same-sex marriages. For example, employers should examine all of their leave policies, particularly family medical leave and paternity leave to ensure that same-sex spouses enjoy benefits equal to those enjoyed currently by opposite-sex spouses.

These are but a few examples of the potential impact that the Massachusetts Supreme Judicial Court’s decision may have in the workplace. We will keep you informed of future developments as they unfold in light of the Goodridge decision.