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10/1/2013 - Oct. 2013 SLI Educational Update - How Does the Supreme Court Opinion Holding Same Sex Marriage Constitutional Affect Employment, Church, and Other Rights and Obligations?



 To:                  SLI Supporters                                  

 Date:               October 2013  

From:              A. Eric Johnston

Re:                  How Does the Supreme Court Opinion Holding Same Sex Marriage Constitutional Affect Employment, Church, and Other Rights and Obligations?

            Our July 2013 Educational Update, “U.S. Supreme Court Finds Federal Law Against Same Sex Marriage Unconstitutional,” reviewed the court cases of Hollingsworth v. Perry and United States v. Windsor, both of which ruled on aspects of same sex marriage.  Hollingsworth, in a round about way, upheld same sex marriage in California and will have little impact on the rest of the country.  Windsor will ultimately have significant impact on every state.

             We have been asked what effects we think these cases will have on employment, religious and church rights, and in the application of federal statutes.  We must begin by saying that most of what we say here is subject to change.  It is difficult to predict what twists and turns same sex legal logic will have in the years ahead. 

            The Court in Windsor held the federal Defense of Marriage Act (“DOMA”) to be unconstitutional.  The basis of Justice Kennedy’s majority opinion was it violates the Equal Protection Clause.  He relied heavily on the federal policy of recognizing states’ definitions of marriage for applying federal law.  We expect that to change as the gay rights’ juggernaut gains momentum and states’ rights become irrelevant.

             For the time being, we expect that federal policy to continue.  The best example of this is the IRS announced on August 29, 2013, its new regulations concerning same sex marriages.  The essence of the IRS position is that in states where same sex marriages are permitted, spouses in those marriages will be treated the same as traditional marriage.  In other words, couples may file joint returns, have dependency exemptions, child tax credits, etcetera.  It does not matter if the couple moves to a state that does not permit same sex marriage, for so long as they were married in a state that permits the same sex marriage.

             We expect the same approach for other federally regulated programs, such as retirement accounts, Family and Medical Leave, and ultimately, Obamacare.  Anything that is federally regulated will be amended to recognize the legality of same sex marriages in same sex marriage states.  For now, civil unions are not recognized by federal law.  Employers should watch for policy directives from government agencies.

             Homosexual activists will make inroads in requiring all states to recognize the rights of same sex couples married in same sex state for all laws.  While this would be consistent with federal law, it does not comport with state and local laws.  There are issues under the Full Faith and Credit Clause of Article 4, § 1 of the U.S. Constitution.  Examples of this are cases we have already had in Alabama where same sex couples from California are seeking to enforce child custody orders in Alabama.  Many lawyers and judges have a misunderstanding of the application of the Full Faith and Credit Clause.  Constitutional authority clearly holds that a state is not required to give full faith and credit to laws from other states that violate public policy.  The gay rights agenda will seek to change that.  

            For Alabama, there are no immediate changes in our laws.  This is true for employers, churches, and in other situations.  Sexual orientation is not a civil or constitutional right and does not enjoy protection such that it will impinge on religious beliefs of employers, churches, and others.  What may cause some confusion is that if a same sex couple comes from a state where their marriage is recognized and are now employed in Alabama, how will that affect the employer in providing for their benefits?  That employer will be required to follow IRS guidelines and other federal policies, as generally mentioned above.

             There are presently no Alabama requirements that churches hire homosexuals or perform or recognize same sex marriages or civil unions.  Federal civil rights laws, i.e., Title VII, do not apply directly to churches.  Religious freedom protects churches in their employment and sacerdotal practices.  Many churches have asked do we need to have a stated policy about not hiring homosexuals or performing same sex marriages.  The simple answer is no.  A church’s history and doctrine usually are sufficient.  However, it causes no harm to have a clearly stated written policy embodying the church’s beliefs. 

              The Employment Non-Discrimination Act (“ENDA”) has not passed Congress.  If that law passes, it will have an impact on many practices.  If Title VII is amended to include sexual orientation, it would probably have the most significant impact of any federal law.  At that point, sexual orientation will have become a federally protected civil right.  That would set up a conflict in constitutional rights and would have a growing and long term impact on many aspects of our lives.  Finally, a state’s hate crimes, discrimination and similar laws will have a similar effect in that state.  We need look no further than Canada and even our own military to see religious speech threatened as a result of homosexual rights.

             The purpose of this Educational Update is not to provide legal advice to anyone.  It is a general statement not sufficient for anyone to make a legal decision.  If anyone has specific legal questions, we are glad to refer to an attorney or suggest you contact your own attorney.    

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