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California rescinds right to same-sex marriage
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Whimsical same-sex wedding cake topper.
Proposition K, which would have legalized prostitution in San Francisco if it had passed, was not the only California issue in the election on Tuesday that generated nationwide interest. Statewide, voters revoked the right of same-sex couples to marry that a decision of the California Supreme Court had granted them several months ago.
California still recognizes the marriages of the same-sex couples who married in the interim in which doing so was legal in the state. (You can learn about the laws concerning same-sex marriage and other issues of interest to gay, lesbian, bisexual and transgender individuals at the Human Rights Campaign site.)
I live in Massachusetts, which is now virtually the only state in which a same-sex couple can marry; the three same-sex couple who I know the best who fought for that right and got married when it was granted wanted to get married for the same reasons as heterosexual couples. They wanted to declare their love for each other in a highly meaningful manner and receive the legal rights that a state grants other people who make that commitment. One couple serve as town and district officials, the second run a business together, and the third are raising two happy and very active children.
The general rule for employers in states in which same-sex couples are allowed to marry is that you must grant a spouse of an employee who is in a same-sex marriage the same rights that you grant the spouse of an employee who is in a heterosexual marriage. Insurance and time off to care for a spouse are two primary issues regarding this.
The distinction is whether state or federal law determines the right that an employee enjoys. Any state law that grants a spouse a right applies regardless of whether both spouses are of the same gender. This is not so under federal law, which does not recognize a same-sex marriage as a marriage. The federal Family Medical Leave Act is an example of this; a same-sex couple does not have the right that this law grants certain types of employees to take up to 12 weeks of leave each year to care for a spouse who has a serious medical condition.
Employers should remember as well that the same federal laws that do not require granting a same-sex couple all of the same rights that employees who are in a heterosexual marriage enjoy do not prohibit doing so. Treating every employee fairly and not making some of them feel like second-class citizens based simply on who they have chosen to love are two strong reasons for doing so.
Please share your comments or questions as additions to this entry or as e-mail to nelsonexaminer@gmail.com. Please remember as well that nothing that I write can be considered legal advice or provide a basis for forming an attorney-client privilege.
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