1. U.S. Supreme Court’s Same-Sex Marriage Decision and What It Means for UNC Charlotte U.S. Supreme Court’s Same-Sex Marriage Decision and What It Means for UNC Charlotte October 15, 2015 Catherine Mitchell Higher Education Legal Fellow

2. Overview Supreme Court Decision Previous state of affairs in United States and North Carolina Implications in various areas of University life Questions/Discussion

3. Held: The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges

4. History 1996—Defense of Marriage Act (DOMA) Prohibited federal recognition of same-sex marriages 2013—DOMA struck down in Windsor Unconstitutional to define marriage that way Supreme Court said it led to the “deprivation of the equal liberty of persons that is protected by the Fifth Amendment” Applied to federal definition only Favorable federal tax and benefit treatment Legality of marriage still determined at state level

5. North Carolina Previous state of affairs: 1996—Denied marriage rights to same-sex couples by statute May 2012—Amendment One passed July 2014—Fourth Circuit ruling that struck down Virginia’s ban on same-sex marriage (Bostic v Shaefer) October 2014—Western District ruled ban on same-sex marriage to be unconstitutional October 2014—Middle District ruled ban on same-sex marriage was unconstitutional Enjoined “the State of North Carolina, the Attorney General, and all officers, agents, and employees of the State of North Carolina” from enforcing any constitutional or statutory provision prohibiting same-sex marriage in North Carolina or prohibiting recognition of a lawful out-of-state same-sex marriage.”

6. Obergefell v. Hodges Legalized same-sex marriage across the country Marriage a fundamental right protected by 14 th Amendment

7. Due Process Clause Fundamental liberties “’extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs’” Eisenstadt v. Baird (1972) “Identification and protection of fundamental rights is part of judicial duty to interpret the Constitution” Marriage is fundamental—and same reasons why fundamental to opposite-sex couples apply to same-sex couples Majority Opinion

8. Equal Protection Clause “Can help to identify and correct inequalities in the institution of marriage” Same-sex marriage bans “burden the liberty of same- sex couples and abridge central precepts of equality” o Same-sex couples denied all benefits afforded to opposite-sex couples and barred from exercising fundamental right Majority Opinion

9. Four principles for protecting right to marry: 1.Right to choose is inherent in individual autonomy 2.Right to marry is fundamental because it is unique, essential and important to committed individuals Dignifies couples—allows them to define themselves by commitment to each other Same rights to enjoy intimate association 3.Safeguards children and families  Freedom to raise, educate, and support children  Deprive children of financial benefit and the “recognition, stability, and predictability marriage offers” 4.Marriage a building block for our society Marriage the basis for expanding list of governmental rights, benefits, and responsibilities

10. Majority Opinion Changing attitudes Religious freedom States’ rights o Democracy appropriate for change, so long as does not abridge fundamental rights o If individuals’ rights violated ”Constitution requires redress by the courts” Schuette v BAMN (2014)

11. Dissents Chief Justice Roberts Disagreed with constitutional argument States should decide Judges have power to say what the law is, not what it should be Justice Scalia Calls attention to Court’s threat to American democracy Public debate was happening and should be allowed to continue Should focus on “the People’s” understanding of liberty Justice Thomas Liberty been understood as freedom from government action, not entitlement to government benefits This isn’t liberty as used in due process clause—even so, haven’t been deprived of liberty at all Justice Alito Constitution leaves question to be decided by the people of each state Due Process protects only rights “deeply rooted in Nation’s history and tradition”

12. Effects of Decision on UNC Charlotte Must provide the same benefits and opportunities to employees with same-sex spouses as those provided to employees with opposite-sex spouses o Consider all policies and benefits that define or refer to marriage or spouses Federal, state, university, contractual, etc.

13. Health Benefits State Health Plan Spouse includes same-sex spouse Dependent child Adopted children, step children of same-sex spouse Fate of domestic partner benefits? Workers’ Compensation Widow/widower Children—adoption, stepchildren Effects of Decision on UNC Charlotte

14. Retirement, Social Security* No longer question about social security when same- sex spouse dies Family Medical Leave Act* Leave to care for sick spouse Leave due to same-sex spouse military service Military caregiver leave for same-sex spouse Leave to care for sick stepchild or stepparent who is child/parent of same-sex spouse Effects of Decision on UNC Charlotte

15. Child Custody and Adoption Dependents of employees Students on parent insurance Financial aid Access to records In-state tuition Married to in-state resident Financial Aid*

16. Federal Tax-Favored Benefits* Flexible spending plans Premium conversion plans Health savings accounts Health reimbursement accounts Effects of Decision on UNC Charlotte

17. Veterans’ Benefits and Military Benefits* Children of veterans/service members Spouse of veterans/service members Tuition benefits Scholarship opportunities

18. Discrimination Considerations Sensitivity training Future constitutional amendments? UNC policies Title IX, Campus SaVE, VAWA Obligations Domestic Violence Effects of Decision on UNC Charlotte

19. Housing Options Offer marriage housing to same-sex couples in same way offer to opposite-sex couples Effects of Decision on UNC Charlotte

20. Student Organizations Religious groups on campus o Religious freedom o Future discrimination laws? Campus Programs Sensitivity training Consider including and recognizing same-sex marriages in curriculum, publications, program development, etc. Curriculum Concept of family

21. Contractors and Service providers Discriminate against same-sex couples? Recruiting Attract more faculty and staff because offer same-sex spouse benefits Effects of Decision on UNC Charlotte

22. Practical Implications Updating forms Training Effects of Decision on UNC Charlotte

23. Other Thoughts Public institution v. Private institution o Religiously based institutions—how will this affect them?  To be continued….

24. QUESTIONS? COMMENTS? DISCUSSION?