The Kentucky Clerk who has refused to issue marriage licenses to same-sex couples is going to jail. She has tried to justify her refusal to perform her job on the ground that to do so would violate her religious beliefs as protected by the Constitution.
Good thing employers do not have to deal with this kind of issue. Or do we?
By way of background, in Obergefell, the Supreme Court struck down Section 2 of The Defense of Marriage Act (“DOMA”). More specifically, the Supreme Court held, in a 5 to 4 decision, that the constitutional right of marriage covers same-sex couples so that no state can deny them the right.
While the decision on its face applies only to states in terms of recognizing same-sex marriage, as a practical matter, for complicated legal reasons, employers generally will have to offer same-sex spouses the same coverage as opposite-sex spouses. While employers with self-insurance plans may have a little more flexibility, there are substantial discrimination risks in treating same-sex spouses differently. In this regard, the EEOC has taken the position that Title VII’s prohibition on sex discrimination covers sexual orientation.
With this background, we return to who may be your “Kentucky Clerk.” It may be a human resources employee who handles employee benefits.