On May 15, 2008, the California Supreme Court held that California laws limiting marriage to opposite-sex couples violated same-sex couples’ rights under the California Constitution.  The Court explained that, "in view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."  The Court also evaluated the challenged marriage statutes under the Equal Protection clause of the California Constitution, concluding that the laws discriminated on the basis of sexual orientation.  Significantly, the Court announced more generally that laws discriminating on this basis must survive "strict scrutiny," the most rigorous possible test, to pass constitutional muster, a standard the Court found the marriage statutes could not meet.  As a result, the Court directed that same-sex couples must be permitted to marry in California.  However, the Court’s decision did not, and, indeed, could not, alter federal law or the marriage laws of other states.

While certainly of great social significance, the Court’s ruling in this related group of highly publicized cases, jointly referred to as In re Marriage Cases, has few immediate and direct effects on California employers.  This is because same-sex couples in California were already able to register as "domestic partners" and thereby avail themselves of virtually all the same rights, responsibilities and protections available to opposite-sex, married couples under California law.  What has – and has not – changed for California employers as a result of this landmark decision is explored briefly below.


Before this decision was issued, employment discrimination on the basis of marital status and registered domestic partner status were both already prohibited to the same extent in California.  This decision does not change or expand the protections available to same-sex couples under these laws.  What is new is that same-sex couples can now claim protection via the same mechanism – marriage – as opposite-sex couples.

Similarly, employment discrimination on the basis of sexual orientation has long been prohibited under California’s Fair Employment and Housing Act.  However, in light of the public awareness this case is likely to trigger, now is a good time to ensure that training materials, employee policies, employee handbooks and the like are up-to-date in this regard.  Now is also probably a good time to ensure that required supervisor training on issues relating to harassment and discrimination has been provided timely.


For the most part, California employers’ obligations to extend benefits to employees’ same-sex partners are largely unchanged by this decision as well.  This is primarily because already-existing California law provides that insurers may only offer for sale group health plans, health insurance and other forms of insurance which provide equal coverage to spouses and registered domestic partners.

Nevertheless, in the wake of this decision, employers should consider reviewing their benefits plans to ensure that the language makes sense for same-sex and opposite-sex couples, and that it otherwise comports with the law and their intent.  Employers who are self insured and self administered and who, by virtue of the somewhat complicated issues relating to the overlap of state and federal law, may not be obligated by law to provide equal benefits to domestic partners and spouses, will certainly want to consult with counsel to determine whether their particular plans’ language imposes new or additional obligations.

From a cost perspective, employers might expect a spurt of same-sex marriages in the near future and a sharp increase in benefits costs as a result.  While the marriages are likely, the overwhelming majority of them will likely be among couples who already are, or at some point would have been, registered as domestic partners.  Thus, the net cost to employers should be minimal.

Finally, employers should keep in mind that they should not impose greater burdens on same-sex couples with respect to proving claimed marital (or, for that matter, domestic partnership) status, than they do for opposite-sex couples.

Same-sex couples married in other jurisdictions

Finally, before this decision, same-sex couples who were married in other jurisdictions which recognize same-sex marriage (currently: Massachusetts, Canada, South Africa, the Netherlands, Belgium, and Spain) and then relocated to California were not considered "married" and, thus, were not entitled to the protections or benefits available to married persons.  To claim the benefits and protections available to domestic partners registering with the state was necessary.

However, as a result of this case, same-sex marriages validly entered in other jurisdictions are now recognized in California.  Thus, these relocating persons now qualify for the benefits and protections extended to domestic partners and spouses seemlessly, without having to register with, or get married again in, the State of California.