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Uncertainty: Gay marriage ruling not universally binding

When Jackson County Circuit Judge J. Dale Youngs ruled Oct. 3 the state must recognize the marriages of same-sex couples in the Barrier v. Vasterling case, news outlets across the country reported Missouri must now recognize same-sex marriages from other states.

That’s not exactly true. Even Missouri Attorney General Chris Koster’s announcement last week that he won’t appeal the decision still doesn’t make Young’s decision universally binding. Unsettled questions remain in Missouri, and they’re making legal advice on employee benefits even more nuanced.

Municipal maybes

Youngs’ ruling only binds the parties in that particular case. Because Missouri was a defendant, state government now has to recognize same-sex marriages from other states.

That’s not the case for municipalities, other than defendant Kansas City, because they weren’t parties to the suit. The city of Springfield, for example, could refuse to recognize the marriage of a same-sex couple married in Iowa, because it is not bound by the decision, explained David Achtenberg, a professor at University of Missouri-Kansas City School of Law. If someone decided to file a lawsuit in Springfield over the issue, the decision wouldn’t necessarily come down the same way as it did in Youngs’ courtroom.

“If they want to not comply with it and plaintiffs bring an action against them, [Springfield] can argue that this decision was mistaken,” Achtenberg said. “If [Springfield were to] lose, they can appeal…other people can’t say this case has already been resolved because [Springfield] can say, ‘Not for us it hasn’t.”

That would have been different had Koster appealed and the case made its way to the Missouri Supreme Court, but he didn’t, so it won’t.

It’s also not unusual for a lawyer to “conclude that the chances of success don’t justify an appeal,” Achtenberg said. In this case, the lawyers for the defendants may think “there is essentially no chance it is going to be overturned.”

“Everything doesn’t have to be decided by the Missouri Supreme Court,” Achtenberg said. “Sometimes, people recognize that’s the law now.”

That view gained credence, and momentum, last Monday when the U.S. Supreme Court declined an opportunity to review and potentially reinstate same-sex marriage bans in five states, bringing to 30 the number of states that recognize gay marriage. Koster, in fact, cited those developments in his statement explaining why he wouldn’t appeal Barrier.

Practical effect

Even without the immediate chance of a Missouri Supreme Court pronouncement on the subject, Youngs’ ruling is already having a practical effect on Missouri employers, including hastening trends already underway.

Doug Neville, an officer in Greensfelder’s employee benefits practice group, said that in light of the ruling, and Koster’s declining to appeal it, it’s likely some Missouri employers “will take action now and consider adding same-sex [benefits] coverage, if they do not already do so.”

“As more and more court decisions come down approving same-sex marriage, it is likely that an increasing number of employers that offer coverage to spouses generally will include same-sex spouses in that coverage,” he said.

For now, when Neville gets a question on the topic, he starts off by letting clients know that they don’t have to provide coverage for same-sex spouses. In fact, Missouri employers are not directly required under any law to offer coverage for spouses at all, Neville said.

If an employer does decide to cover spouses, Neville tells the client it’s free to decide if it wants to cover same-sex spouses.

“The bottom line is, legally, at this point, as of today, employers are not required to offer health coverage to same-sex spouses,” he said.

At the same time, however, Neville says as an attorney he always gets “a little bit nervous when making distinctions between different classes of people.”

“We do advise employers to carefully think about that question and if they’re offering it to opposite-sex couples, to seriously consider doing it for same-sex spouses so they’re not making any distinctions,” he said.

Right now, the landscape in Missouri is a “mixed bag,” with some employers offering benefits to same-sex spouses while others aren’t, said employee benefits lawyer Alan Kandel of Husch Blackwell. “It really varies by each company’s culture,” he said.

Employers that don’t offer that coverage typically have an ideological issue with it, Kandel said. Offering the benefit typically doesn’t change a lot “as far as what it’s going to cost.”

For University of Missouri systems, which adopted sponsored adult dependents for coverage after a of board of curators vote in June, the fiscal impact has “been minimal,” said system spokesman John Fougere.

Only 24 people out of 19,200 benefit-eligible employees in the UM System are enrolled in the benefit, Fougere said.

Neville said he doesn’t see any advantage to companies waiting for a definitive ruling before offering the benefit. He fully expects nationwide recognition of same-sex marriage, though he adds: “It could take a while, especially if the Supreme Court continues to not actively hear the cases.”

Retirement plans affected

The decision in Barrier has already prompted some state government retirement plans to change. The Missouri Consolidated Heath Care Plan and The Missouri State Employees’ Retirement System said last week that they would offer coverage for same-sex spouses married in other states.

It was not immediately clear if other statewide retirement plans would make changes to comply with Barrier.

“The persons in charge of any other plan would have to consider whether it would be a waste of plan assets to pay a survivor benefit to a same-sex spouse when the Missouri Constitution and statutes currently define a marriage as being between one man and one woman,” Kandel said in an email.

Harvard scholar expected high court to avoid taking up gay marriage issue

By Scott Lauck

Laurence Tribe, a Harvard Law School professor and prominent constitutional legal scholar, said last week that he wasn’t surprised that the U.S. Supreme Court didn’t take up the gay marriage issue, as none of the seven cases presented a conflict among the appellate circuits or with any prior court ruling.

Harvard Law School Professor Laurence Tribe speaks about the U.S. Supreme Court and interpretations of the Constitution during a presentation in suburban Kansas City on Tuesday. Moderating the discussion is Teresa Wynn Roseborough, general counsel for The Home Depot. Photo by Scott Lauck

Harvard Law School Professor Laurence Tribe speaks about the U.S. Supreme Court and interpretations of the Constitution during a presentation in suburban Kansas City on Tuesday. Moderating the discussion is Teresa Wynn Roseborough, general counsel for The Home Depot. Photo by Scott Lauck

“The Supremes are undoubtedly waiting until one circuit court finally rules the other way,” Tribe told a group of about 1,000 high school and college students at Johnson County Community College in suburban Kansas City on Tuesday.

In an interview following his speech, Tribe added that the lack of action on the cases could be “defensive denials of certiorari,” signaling that those on the court who are inclined to vote in favor of gay marriage aren’t sure they have the votes to prevail. On the other hand, it could mean the justices who support gay marriage are confident their position will eventually prevail.

“This is one where the court could simply sit back, watch the cascade continue, see a broader consensus forming and have somewhat less of a risk of a backlash,” he said.

Tribe has played a key role in some landmark gay rights cases. In 1986, he argued on behalf of a gay couple in Georgia who were prosecuted for sodomy. Although the Supreme Court’s resulting opinion, Bowers v. Hardwick, upheld the sodomy laws, the dissenting opinions in the case eventually won the day the court overturned Bowers in its 2003 opinion, Lawrence v. Texas, which struck down sodomy laws as unconstitutional.