The Battle for Marriage Equality Is Still Being Fought in the Lower Courts

When it comes to the fight for marriage equality, all eyes are on the Supreme Court and what it will do this June.  But that doesn’t mean there’s nothing happening in the lower courts in the meantime.  Last week, a district court judge in Texas blocked the federal government from enforcing a rule that would grant Family and Medical Leave Act (“FMLA”) benefits to same-sex spouses.  The decision is clearly wrong, no matter what the Supreme Court does this June, but it’s still a good reminder of why a Supreme Court decision recognizing a right to marriage equality is so important.

The FMLA is a federal law that allows certain employees to take a specified amount of unpaid leave if a family member, including a spouse, is ill.  This is a big deal, because it means your employer can’t fire you for taking time off to care for your spouse, and you get to keep your health insurance while you’re out.  The FMLA defines the term “spouse” to mean “a husband or wife, as the case may be,” and the Obama Administration has promulgated a regulation that would determine whether an employee’s partner qualifies as a “spouse” based on the state where the employee entered into the marriage.  (The regulation had previously defined that term based on the state where the employee lives.)  The point of the change was to extend federal benefits under the FMLA to same-sex couples who are validly married, but whose marriage isn’t recognized in the state where they live.

Texas and three other states (Arkansas, Louisiana, and Nebraska), four of the roughly dozen states in which same-sex couples still can’t marry, challenged the rule in court, asking the court to block its implementation on the ground that it “attempts to override State law” by requiring “state employers to grant FMLA spousal care benefits to individuals in relationships not recognized as marriage in the Plaintiff States.”  And in an Orwellian twist, the states claimed support from a Supreme Court decision that actually makes clear why they should lose: United States v. Windsor

In 2013, in Windsor, the Supreme Court held unconstitutional the provision of the federal Defense of Marriage Act that defined marriage to be between a man and a woman for purposes of federal law.  The Court didn’t decide whether states can prohibit same-sex marriage—that’s what the Court will be deciding this June—but it did decide that the federal law prohibiting the provision of  federal benefits to same-sex couples validly married under state law could not stand.

According to the states challenging the rule, Windsor supports their claim that validly married same-sex couples can’t receive FMLA benefits in their states because “the Court disapproved of federal interference with State marriage law” and “reaffirmed the States’ authority to define and regulate marriage.”  As an initial matter, that’s not correct.  In fact, Windsor’s a big reason why the Supreme Court in June should, and likely will, say that no state can deny same-sex couples the right to marry.  Indeed, numerous lower courts have already relied on Windsor to strike down same-sex marriage bans. 

Further, this account of Windsor also misunderstands why that case is relevant to the new FMLA rule.  Thanks to Windsor, same-sex couples validly married under state law are entitled to the more than 1,000 federal rights and benefits that are available to all other married couples.  All the new FMLA rule does is provide that federal benefits—not state benefits—are available to all same-sex couples who are validly married, regardless of whether the state in which they’re currently living recognizes their marriage.  As the government explained in its brief, the rule “provides that an employee validly married in one state is treated as having a ‘spouse’ for the limited federal purpose of FMLA leave . . . .  The rule does not purport to dictate what marriages are to be recognized under any state’s law, including the law of Texas.”  In other words, Texas can determine benefits under Texas law, and the federal government can determine benefits under federal law.

The Texas district court disagreed, crediting the states’ claim that the federal government was trying to “force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages,” and temporarily blocked implementation of the law.  (Earlier this week, the federal government asked the court to hold a hearing where it will argue that the rule should not have been blocked.)  Of course, if the Supreme Court in June holds, as the Constitution requires, that states can’t prohibit same-sex marriage, this district court ruling won’t matter.  But that doesn’t mean people should ignore it now, because it matters a great deal in the meantime.

First, it surely matters to those validly married gay men and lesbians living in those states affected by the court’s ruling (specifically, Texas, Arkansas, Louisiana, and Nebraska).  Without this new rule, they won’t be entitled to receive FMLA benefits if their spouse is sick; they could lose their job and their health insurance, simply because they want to do what anyone would want to do in that situation—care for their loved one—something that a similarly situated married heterosexual employee can do under federal law.

Second, it underscores why it is so important that the Supreme Court recognize a right to marriage equality this June.  To some, debates about marriage equality are better left to the political process.  In his opinion last fall allowing same-sex marriage bans to stand, federal Judge Jeffrey Sutton suggested that, if left to the people to decide, they might “meet today’s challenge admirably and settle the issue in a productive way,” noting that “[i]n just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand [the] definition of marriage.” 

Judge Sutton’s approach is wrong as a legal matter—under our Constitution, fundamental constitutional principles aren’t subject to popular vote—and it’s also wrong for another reason: it ignores the significant resistance that exists in those states that have not yet recognized same-sex marriage.  (It’s perhaps worth noting that eight of the roughly dozen states that still prohibit same-sex marriage were among the 16 states that still prohibited interracial marriage in 1967, when the Supreme Court held that restriction on marriage equality unconstitutional.)  This new ruling out of Texas illustrates that resistance, denying validly married same-sex couples the benefits under federal law to which they are clearly entitled.

Some people may never give up trying to deny others the right to marry until the Supreme Court tells them they have to.  Fortunately, that’s what the Constitution requires the Court to do this June.

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