Ninth Circuit Court Invalidates Nevada Laws Prohibiting Same-Sex Marriage - The Latta v. Otter Case and Your Company

Volume 13, Issue 18
December 9, 2014

All of our clients likely are aware of the Ninth Circuit Court of Appeals' decision on October 7, 2014, in Latta v. Otter, where the court found unconstitutional, under the U.S. Constitution, Nevada's definition of marriage as being between "a man and a woman" as enshrined in the state constitution and NRS Chapter 122A. This decision follows the U.S. Supreme Court's 2013 decision in United States v. Windsor, where the high court held that spouses in same-sex unions must be treated as "spouses" under federal law - including with regard to federally-regulated benefits. Last month, the U.S. Supreme Court declined to take up the issue of the constitutionality of the "man and woman" definition of marriage; all of the Circuit Appellate Court decisions by that date held similarly to Latta. But, given a recent decision in another Circuit Court upholding bans on same-sex marriage, it is possible the U.S. Supreme Court may reconsider reviewing this issue.

Until the federal courts rule otherwise, Latta sets the law here in Nevada. But, do you know how Latta affects your employees who may be in a same-sex marriage?

  • First, after last year's Windsor decision, for employee benefits with a federal link - such as those under the Family and Medical Leave Act and most plans regulated by ERISA - the company should consider a spouse in a same-sex union the same as any "spouse" so long as the same-sex marriage is legal where it is performed and/or where the couple resides.
    • The FMLA's present definition of "spouse" means "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides . . . ." Before Latta, a couple married in California, once that state recognized same-sex marriage, would not be considered "married" in Nevada - and the same-sex spouse of your employee would not be considered a "spouse" for purposes of benefits. Since Latta, the same-sex marriage "spouse" is really a "spouse."
    • In light of Windsor, the DOL has proposed a new definition of "spouse" focusing upon the "place of celebration" of the marriage rather than "residence" to determine the legal status of same-sex marriages and would create a uniform standard.
    • For now, you should treat a spouse in a same-sex marriage as a "spouse" for FMLA purposes. Nevada recognizes same-sex marriages performed in Nevada since Latta and same-sex marriages performed in another state where legal.
  • Nevada also allows any couple to register as a domestic partnership. Latta does not automatically convert a domestic partnership into a marriage. There is no need to make any change unless you are notified the couple has married.
  • Review personnel policies to ascertain whether any of them contain language limiting coverage of a policy to "husband" and "wife" (rather than "spouse") and ensure non-discrimination and harassment policies include a prohibition of discrimination on the basis of sexual orientation or gender identity and expression.
  • Train supervisors and employees about the implications of elimination of Nevada's constitutional and statutory provisions limiting marriage to a union of a "man" and "woman" and the applicable discrimination policies. It is essential to prevent harassment on this basis.
  • Review insurance plans and consult your broker about including same-sex spouses and making sure that the plans do not treat same-sex couples differently from opposite-sex couples.

If you have any questions or would like further information about this legal development, please do not hesitate to call the KZA attorney with whom you regularly work or call our office at (702) 259-8640.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.