On Tuesday, the California Supreme Court upheld the November amendment to the state constitution—Prop 8—that prohibits same-sex marriage. The court did, however, rule that the 18,000+ same-sex marriages already performed in California will remain legally valid.
While individuals will either praise or denounce the decision depending on their personal views, for employers the court’s decision may mostly lead to confusion about how to administer policies and benefits plans.
Prop 8 amended Article I of the California Constitution to state: “Only marriage between a man and a woman is valid or recognized in California.” But, as noted above, same-sex couples married in California prior to November of last year remain legally married. Many others are in registered domestic partnerships.
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The federal Defense of Marriage Act (DOMA), passed in 1996, holds that states are not required to recognize the same-sex marriages of people married in other states. So same-sex couples married in other states who move to California are not considered to be married here. It remains unclear what the legal status of couples married in other states who moved to California prior to the passage of Prop 8 will be, in the wake of the court’s decision. What’s more, President Obama has previously vowed to repeal DOMA, so the federal rules regarding same-sex marriages may be changing soon as well.
If you find all of this confusing, just remember that regardless of marital status, California provides the greatest level of protection to domestic partnerships of any state in the country. In California, employers are required to provide the same benefits to domestic partners as are offered to married couples. Moreover, employees are still protected from discrimination based on sexual orientation. This means that employers should inform all managers and supervisors that the Supreme Court’s decision doesn’t alter your non-discrimination policies in any way. Employers should also be aware that frequent or harassing statements praising the court’s Prop 8 decision could lead to bias lawsuits if left unchecked.
We’ll have more on legal developments affecting same-sex employees in upcoming issues of California Employer Advisor.