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Same-sex marriage decision leaves some unanswered questions

The Supreme Court decision in Obergefell v. Hodges was a game-changer in many states that did not allow same-sex marriages or did not recognize same-sex marriages performed in other states. However, for same-sex couples in Maryland and across the country, the ruling left some questions unresolved.

The first question is whether the June 26, 2015, ruling is retroactive. Can same-sex couples go back and demand benefits that were denied to them previously because the state they lived in did not recognize their marriage? No federal agency has provided any direction on this issue, although it has been reported that the Social Security Administration will apply the decision retroactively. Two lawsuits are currently proceeding in federal courts, both pertaining to the retroactivity of adding a same-sex spouse to an employee's health insurance. On the state front, two decisions have already addressed state law and determined that the state must recognize same-sex marriages performed before the Supreme Court decision.

The second question is whether the court's decision applies to self-insured health plans. Many employers provide health insurance to their employees through a self-insured plan that is funded directly by the employer and administered by a third party. Under the federal ERISA law, regulation of self-insured health plans is a federal, not state, responsibility. ERISA does not prohibit disparate treatment of same-sex couples and opposite-sex couples in the administration of health plans.

The Equal Employment Opportunity Commission has, since 2012, taken the position that sex discrimination encompasses more than just discrimination based on biological differences between females and males. Same-sex couples who were married in a state where marriage was legal before Obergefell and who were denied benefits or opportunities by the state or federal government based on their same-sex marriage may wish to consult a family law attorney to determine how best to proceed.

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