In an announcement on October 6, 2014, the United States Supreme Court declined to review any of the same-sex marriage cases currently before it.
As background, there have been several challenges to the same-sex marriage bans that had been brought to the attention of the Supreme Court. Often, the Supreme Court makes its determination about which cases to take based on whether a controversy exists among the circuit courts. Thus far on these same-sex marriage cases, there is no controversy. Generally, the circuit courts that have heard the marriage cases have all supported same-sex marriage and have opposed bans on such. Perhaps it is this lack of controversy among the circuits that has caused the Supreme Court to decline taking up any of the cases.
Nevertheless, the fact that the Supreme Court will not rule leaves the matter in a state of flux. The lower courts, and particularly those circuits that have yet to rule on the matter, continue to have the right to rule either way. The circuits that have ruled thus far are the Fourth, Seventh and Tenth, making way for same-sex marriage in Virginia, Indiana, Wisconsin, Utah and Oklahoma. It is likely that in the very near term, same-sex marriages will also be sanctioned in the other states included within these circuits: North Carolina, South Carolina, West Virginia, Colorado, Kansas, and Wyoming.
Currently, the following states already sanction same-sex marriage:
| California | Hawaii | Maryland | New Jersey | Pennsylvania |
| Connecticut | Illinois | Massachusetts | New Mexico | Rhode Island |
| Delaware | Iowa | Minnesota | New York | Vermont |
| District of Columbia | Maine | New Hampshire | Oregon | Washington |
As a reminder, for federal purposes, including Internal Revenue Code, ERISA, HIPAA, ACA, and other federal laws impacting benefits, same-sex marriage is a legal marriage. Whether a state sanctions same-sex marriage remains in the purview of the states, at least to those states in federal circuits that have yet to rule on the matter.
In a related same-sex marriage challenge that is winding its way through the courts, the issue of sex discrimination is being considered, specifically as it relates to a same-sex spouse being denied coverage under a health plan. In the case of Hall v. BNSF Railway Co, two different employees, each legally married to their same-sex spouse, were denied access to health plan coverage based on the employer’s policy and its health plan that defined marriage as between one man and one woman. Thus, benefits were only available for spouses of the opposite sex. While the employer began to voluntarily allow access to the same-sex spouses, the employees then challenged the employer’s policy as a violation under the Equal Pay Act, ERISA and Washington’s Law Against Discrimination. At this point, the US District Court for the Western District of Washington at Seattle denied a motion to dismiss based on the premise that there might be a cause of action for a Title VII violation based on sex discrimination. Stay tuned as these matters unfold.
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