Same-Sex Marriage and Texas School Districts

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1 Same-Sex Marriage and Texas School Districts On June 26, 2015, the United States Supreme Court ruled that same-sex couples have a fundamental right to marry. The Court s historic ruling established that the Fourteenth Amendment of the United States Constitution 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 that was lawfully performed in another state. Obergefell v. Hodges, 135 S. Ct (2015). This FAQ will discuss the impact of the Obergefell decision on school districts in Texas. Q: Is same-sex marriage legal in Texas? A: Yes. Prior to Obergefell, Texas was among the minority of states in which same-sex marriage was not recognized under state law. Tex. Const. art. 1, 32. On February 26, 2014, a federal district court judge ruled that Texas ban on same-sex marriage violated the Equal Protection Clause of the United States Constitution. De Leon v. Perry, 975 F. Supp.2d 632 (W.D. Tex. 2014). The decision had no immediate effect, however, as the court delayed execution of its ruling pending an appeal to the Fifth Circuit Court of Appeals. On July 1, the Fifth Circuit lifted the stay in De Leon in light of the Supreme Court s ruling in Obergefell. De Leon v. Abbott, No (5th Circ. July 1, 2015). Texas officials must now issue marriage licenses to same-sex couples and recognize same-sex marriages performed in other jurisdictions. Q: What employment benefits are available to a school district employee s same-sex spouse? A: Texas school districts must treat same-sex spouses the same as opposite-sex spouses for the purpose of determining eligibility for benefits. That is, if a district benefit is available to an employee s spouse, it is available regardless of the spouse s gender or sexual orientation. Prior to Obergefell, districts had to provide federal benefits to a same-sex spouse who was lawfully married to an employee in a jurisdiction that recognized same-sex marriage. This resulted from the Supreme Court striking down the federal Defense of Marriage Act (DOMA) in See United States v. Windsor, 133 S. Ct (2013) (holding Section 3 of DOMA violated Due Process and Equal Protection Clauses of United States Constitution). Now that same-sex marriage is legal throughout the United States, a district must treat a same-sex spouse as an employee s spouse for any benefits purpose regardless of where the couple was married. This includes the following types of benefits:

2 Page 2 Health Insurance Benefits: Districts must allow employees to enroll their same-sex spouses in health insurance benefits under the same terms as opposite-sex spouses. TRS has amended the eligibility criteria for enrollment in TRS-ActiveCare to comply with the Obergefell decision. Effective with the open enrollment period for the plan year, employees may enroll their same-sex spouses in health insurance coverage. TRS has also recognized a special enrollment event so that an employee may enroll a same-sex spouse and/or add dependent(s) for the remainder of the existing plan year. Details are available on the TRS Website at For districts that do not participate in TRS ActiveCare, if an employee s spouse is eligible for health insurance benefits under the plan, then the district must offer benefits to same-sex spouses. Retirement Benefits: A qualified retirement plan must treat a same-sex spouse as a spouse for the purposes of satisfying certain federal tax laws relating to qualified retirement plans. Internal Revenue Serv., Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law, available at Asked-Questions-for-Same-Sex-Married-Couples. For the most part, retirement benefits for school district employees are handled by TRS. However, districts that offer supplemental or alternative retirement benefits, such as 403(b) or 401(k) programs, should ensure that they treat married same-sex partners as spouses under these programs. Note that this has been the case since 2013, when the Supreme Court issued the Windsor decision. In addition, TRS has amended the eligibility criteria for same-sex spouses in TRS-Care and created a special enrollment opportunity in light of Obergefell. Detailed information is available on the TRS Website at Income Taxes: Same-sex marriage has implications on the tax treatment of employer-provided health benefits. If an employee is married, the district may not treat the value of benefits extended to the spouse as imputed income. This has applied equally to married same-sex couples since Windsor in Flexible Spending Accounts: The Windsor decision also impacted contributions to and from payments from flexible spending accounts (FSAs) and health savings accounts (HSAs) under the Internal Revenue Code, sections 125 and 129. For example, the maximum contribution to a dependent care assistance program is $5,000 for an individual or a married couple filing jointly, or $2,500 for a married individual filing separately. If both spouses in a same-sex marriage are contributing to an FSA, the spouses total contributions to the FSA are limited to $5,000. Moreover, an employee may use funds in a Section 125 account for the medical expense of a samesex spouse or the same-sex spouse s dependents. For practical purposes, this is not likely to impact district practices since most districts use third-party administrators for their FSAs and HSAs.

3 Page 3 Family and Medical Leave: In light of Windsor, the Department of Labor issued new regulations defining spouse for purposes of the Family and Medical Leave Act (FMLA) in March of On March 26, 2015, a federal district court granted the Texas Attorney General s request for a preliminary injunction delaying implementation of the revised FMLA regulations pending the state s legal challenge to the federal rules. The Supreme Court s decision in Obergefell negated the possibility that the state could succeed in arguing that the DOL rules should not apply in Texas. Therefore, the district court dissolved the injunction against enforcement of the DOL definition of spouse on June 26, State of Texas v. United States, No. 7:15-cv O (N.D. Tex. June 26, 2015). Eligible employees in Texas are now entitled to: Take FMLA leave to care for a lawfully married same-sex spouse with a serious health condition; Take qualifying exigency leave due to a lawfully married same-sex spouse s covered military service; Take military caregiver leave for a lawfully married same-sex spouse; Take FMLA leave to care for a stepchild (child of employee s same-sex spouse) regardless of whether the employee meets the in loco parentis requirement of providing day-to-day care or financial support; and Take FMLA leave to care for a stepparent who is a same-sex spouse of the employee s parent, regardless of whether the stepparent ever stood in loco parentis to the employee. State and Local Leave: Any state or local leave that is available to an employee based on a marriage relationship now applies equally to married same-sex spouses. An employee may be eligible for certain types of leave based on an immediate family relationship, which now includes a same-sex spouse. For example, local policy may address extended sick leave for an immediate family member s catastrophic illness or injury. District staff will need to consult their DEC(LOCAL) policies to determine which forms of leave may be implicated. Q: Is any documentation required to establish a same-sex spouse s eligibility for district benefits? A: When seeking documentation of relationships for the purpose of determining eligibility for benefits, districts should treat same-sex marriage the same as other marriages. If the district does not normally ask for documentation of marriages, the district should not require documentation of same-sex marriages. If a district requires reasonable documentation of marriage relationships, the employee can choose to provide a simple statement or other documentation (like a marriage license). The district can require a simple statement, but should not insist on a government-issued form.

4 Page 4 Q: What is the impact of same-sex marriage on parental rights? A: The definitions of parent in federal and state law pertaining to school districts do not address a parent s sex or marital status. See 34 C.F.R (defining parent under Family Educational Rights and Privacy Act as a guardian, natural parent, or an individual acting as a parent in the absence of a parent or guardian ); also see Tex. Educ. Code (defining parent generally as a person standing in parental relation ). As such, Obergefell has no direct relevance to an individual s parental rights with respect to a student. Previously, Texas law did not explicitly deny same-sex couples the right to adopt children. Tex. Fam. Code Nonetheless, some courts may have been reluctant to grant adoption rights because same-sex marriage was not permitted or recognized under state law. School districts will likely encounter more families including married same-sex parents. Even before the legalization of same-sex marriage in Texas, districts were required to recognize a parent s same-sex partner as the student s other parent if he or she met the definition of a parent. Q: Does the Obergefell decision impact school districts in the event of the death of an employee with a same-sex spouse? A: Yes. A deceased employee s surviving spouse is the only person authorized under Texas law to claim unpaid wages or other property of a deceased employee without court appointment. A district may release a deceased employee s unpaid wages to his or her surviving same-sex spouse if the spouse is the personal representative of the deceased employee s estate. Tex. Estates Code Alternatively, if there is no administration of the decease employee s estate, and therefore no personal representative, a district may release the unpaid wages and any other community property to the surviving same-sex spouse if the spouse provides a notarized affidavit of authority. Tex. Estates Code The district does not have to prove the validity of the affidavit and may release unpaid wages to the surviving spouse without potential liability. Tex. Estates Code Q: How should a district respond if employees have a religious objection to same-sex marriage? A: Same-sex marriage may evoke strong feelings among district staff, including religious objections to the notion that individuals of the same sex may legally marry. In Texas, the Religious Freedom Restoration Act (RFRA) protects free exercise of religion, defined as an act or refusal to act that is substantially motivated by sincere religious belief. Tex. Civ. Prac. & Rem. Code (a)(1). Further, RFRA prohibits a government employer from substantially burdening an employee s free exercise of religion, unless the burden is the least restrictive way of furthering a compelling governmental interest. Tex. Civ. Prac. & Rem. Code In addition, Title VII of the Civil Rights Act of 1964 requires a covered employer to make reasonable accommodations for the religious beliefs of employees.

5 Page 5 On June 25, 2015, Lieutenant Governor Dan Patrick requested an attorney general opinion regarding whether, in the event that the state ban on same-sex marriage was overturned, government officials such as employees of county clerks, justices of the peace, and judges could refuse to issue licenses to same-sex couples or perform same-sex marriages on religious grounds. In his opinion, the attorney general took note of RFRA and state and federal laws prohibiting religious discrimination. The attorney general concluded that these laws may require accommodating the religious beliefs of county clerks or their employees against issuing a same-sex marriage license, depending on the particular facts of each case. The attorney general also opined that justices of the peace or judges may claim that being forced to perform a same-sex wedding ceremony over their religious objection violates RFRA, because forcing an official with a religious objection to perform a ceremony, when other officials without objections are available, is not the least restrictive means of carrying out the government s interest in performing the ceremony. Op. Tex. Att y Gen. No. KP-25 (2015). In the school district context, employees may cite an objection to same-sex marriage as justification for refusing to carry out a job duty, such as processing a leave request or health benefits or meeting with a parent s same-sex spouse to discuss a student s progress. The attorney general s opinion did not address these scenarios. What districts decide to do when an employee expresses an objection will depend on the situation and the nature of the objection. If another employee is available to perform the job function of the objecting employee, a district may decide to accommodate the employee by reassigning the duty temporarily. As same-sex marriage is new in Texas, no court has ruled definitively on the right of a public employee to decline to perform an administrative job duty based on a religious objection. In general, district officials should approach requests for religious accommodations with an open mind and seek to achieve a mutually acceptable solution. Before denying a request for a religious accommodation, districts should seek legal advice from the district s attorney. This document is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for the recipient to consult with the district s own attorney in order to apply these legal principles to specific fact situations. Updated July 2015

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