Over two months has passed since the US Supreme Court’s June 26, 2013 rulings addressing same-sex marriages (addressing the constitutionality of the federal definition of marriage under Section 3 of DOMA and California’s Proposition 8, respectively). Now that the initial societal hubbub has subsided, federal and state governments, religious institutions, and nonprofit employers in general are beginning to focus on the many tax and legal issues affected by these rulings.
What the Rulings Do
In the first of the two rulings, the Supreme Court invalidated Congress’ definition of marriage in DOMA as a “union between one man and woman,” ruling that the definition violates the equal protection requirements of the Constitution. Thus, the definition of what constitutes a lawful marriage, for federal law purposes, is now determined by the applicable state’s law. (Same-sex marriages are permissible in 13 states and the District of Columbia, while 37 states define marriage as a union between one man and woman.)
At present, over 1,000 federal laws contain provisions that reference marital status, including the taxation and COBRA requirements of employer-provided health care benefits, the impact of ERISA on 403(b) retirement and other pension plans, unpaid leave rights under the FMLA, social security and Medicare benefits. All nonprofit employers should thus be aware of changes developing as a result of these rulings.
What the Rulings Do Not Do
Equally important to understanding what the two rulings do is to also understand what they do not do. The Supreme Court decisions did not establish that same-sex people have a fundamental right to marry that is protected by the federal constitution. Neither ruling invalidated the prohibitions on same-sex marriage that are currently maintained by 37 states. They also did not rule that states prohibiting same-sex marriages, must now give effect and honor other states’ same sex marriages, or the rights or claims arising from such relationships.
Neither of the Supreme Court decisions impacts a religious organization’s ability, in accordance with the tenets of its religious and moral beliefs, to make decisions on the basis of an individual’s involvement in a same-sex relationship. Clergy, even in states that recognize same-sex marriages, are not legally required to marry same-sex couples, if that lifestyle is incompatible with the religious institution’s or the clergy’s religious beliefs.
Generally speaking, religious institutions still enjoy significant legal protection that should allow them to act in accordance with the tenets of their religious faith, and therefore remain exempt from potentially conflicting government intrusions, such as employment matters.
A few words of caution are in order. Other nonprofits and individuals may not qualify for similar religion-based legal protections, even though they sincerely hold the same religious beliefs. Their different status is currently the subject of extensive litigation about the HHS “contraception mandate,” in cases filed by faith-based nonprofits and religious business owners. The numerous state laws that prohibit sexual orientation discrimination in areas such as employment and real estate will remain significant, as our country continues to work through these challenging intersections of faith, human behavior, and the law.
