Same Sex Marriage - What Does It Mean for California Employers?
On May 15, 2008, the California Supreme Court held that same sex couples have a constitutional right to marry. California and Massachusetts are now the only states which recognize such marriages. The decision became effective on June 16, 2008, resulting in a wave of same sex marriages throughout the State. Despite the significant publicity surrounding both the Court's decision, and the onset of actual marriage ceremonies, the decision appears to extend, but not necessarily alter, the obligations of California employers to same sex couples. Since 2005, California law has required California employers to grant the same rights, privileges and benefits to registered domestic partners – which in most cases are same sex couples – as granted to married spouses. Now, in addition to granting those rights to registered domestic partners to the same extent as offered to traditionally married spouses, such benefits may also be required to be granted to same sex spouses.
Recognize, however, that any federally mandated right or benefit may not be granted to either same sex spouses or registered domestic partners. Federal law does not recognize such unions. Consequently, registered domestic partners, and now same sex spouses, are not entitled to COBRA, FMLA or any other federally provided right or benefit (there are over 1,100 rights/benefits provided to married couples, which under federal law, must be a man and woman). Recognize also that FMLA/CFRA may not run concurrently in situations involving same sex spouses or registered domestic partners, in addition to other differing treatment (state/federal income tax deductions, Section 125 benefit plans, etc.).
It appears a measure will be placed on California's November ballot seeking to amend the California Constitution to require marriages be between a man and a woman only, similar to federal law. If this passes, the effect on same sex marriages being entered now is unclear. However, the measure does not appear to have retroactive effect, and thus should not invalidate those marriages.
California employers should carefully review their benefit plans and policies to ensure registered domestic partners, and now same sex spouses, are being extended appropriate rights and benefits.