CA Supreme Court Puts Gay Marriage on Hold… For Now

>In two separate orders, the California Supreme Court unanimously stayed the marriages until it can hold a show-cause hearing in late May or June.    Until then, San Francisco was ordered “to enforce and apply [state law] without regard to respondents’ personal view of the constitutionality of such provisions, and to refrain from issuing marriage licenses or certificates not authorized by” state law, according to a report by The Recorder.

However, the show-cause hearings will not address the constitutionality of same-sex unions.    Rather, the high court said the hearings would be limited to whether officials in San Francisco had exceeded their authority.   To address the constitutional issues, the court noted that separate actions to challenge the constitutionality of state family laws that say a marriage is between a man and a woman could be filled.  

The Supreme Court’s directions came in response to two petitions filed about two weeks ago by Attorney General Bill Lockyer, acting on the request of Governor Arnold   Schwarzenegger, and three San Francisco residents represented by the Alliance Defense Fund.

Plan Sponsor Concerns

For plan sponsors, the supreme court’s order does little to answer the broader question of how to treat a same-sex union for benefit purposes.    After all, just because a same-sex spouse is not a spouse under federal law does not mean that a plan sponsor is out of the woods for the4,161same-sex unions that were conducted in San Francisco or elsewhere.  

“Sponsors just can’t say they won’t recognize the employee’s spouse for any purpose,” Martha Priddy Patterson, a Washington-based director of the Human Capital Advisory Services practice of Deloitte & Touche LLP told PLANSPONSOR  in October (See Total Benefits: Border Line? ). For one thing, there are many “soft” non-ERISA benefit plans that may provide spousal benefits, such as relocation benefits and employee discounts. There are also benefits peculiar to particular industries, such as free flights in the airline industry and housing allowances that are not ERISA benefits.  State law also may govern many aspects of insured health-care plans and life insurance, says Patterson, and many states have their own versions of the FMLA that are not preempted by federal law.

Further complicating matters are municipalities that have taken it upon themselves to recognize same-sex marriages that were conducted in other jurisdictions.    Earlier this week, Seattle Mayor Gregory Nickels issued an executive order acknowledging the validity of marriages regardless of the sex of the individuals for purposes of city employee benefits.  The order was handed down by the Democratic mayor to ensure the same sex marriages of city employees are recognized in the same manner that opposite sex marriages are recognized by the city for its employees.  In addition, the decree affirms the “city’s support for gay marriage” (See  Seattle Mayor Acknowledges Same Sex Marriages ).    This was followed by a San Jose City Council vote of 8-1 in favor of a motion providing more comprehensive health and retirement benefits to partners and family members of gay and lesbian city workers who get married in cities that allow same-sex marriages (See  San Jose Will Recognize Same Sex Marriages ).