Senate passes protections for same-sex marriages 

Congress began its lame-duck session this week with Senate approval of legislation requiring states to recognize marriages performed in other states without regard to sex, race, ethnicity, or national origin. The House could pass the “Respect for Marriage Act” (HR 8404) as soon as next week. President Biden has said that he will sign the bill into law.

The bill also repeals a provision of a 1996 law known as the Defense of Marriage Act (DOMA) that allowed states to refuse to recognize lawful same-sex marriages and re-writes the federal definition of marriage which DOMA originally defined as between a man and a woman and which the Supreme Court found to be unconstitutional in a 2013 decision.

Backers of the Respect for Marriage Act say it’s intended to ease concerns that the Supreme Court could revisit precedents that protected same-sex and interracial marriages as constitutional rights. When the Supreme Court earlier this year ended the federal constitutional right to abortion (Dobbs v. Jackson Women’s Health Org.), a concurring opinion by Justice Clarence Thomas suggested that the court should revisit past decisions undergirding same-sex marriage, including its 2015 decision in Obergefell v. Hodges. That ruling held that all states must issue same-sex marriage licenses and recognize same-sex marriages validly established elsewhere.

While no other justices said they shared Justice Thomas’ stance, House Democrats took immediate steps to bring similar same-sex marriage legislation to a vote. The earlier bill passed with substantial bipartisan support but hit a roadblock in the Senate, where some Republicans raised religious liberty concerns. Senate Democrats decided to delay a vote until after the midterm elections. A breakthrough came earlier this month when bipartisan backers of the new legislation secured a deal on its religious liberty language and enough GOP votes to advance the bill.  

The Senate-passed bill exempts non-profit religious organizations from civil lawsuits for “any refusal” to provide goods or services based on religious objections. It also says that declining to support same-sex marriages wouldn’t put a group’s tax-exempt status at risk. Still, some Republican senators warn that the legislation doesn’t provide strong enough assurance that nonprofit religious groups that refuse to provide goods or services won’t face lawsuits and other repercussions.

The legislation isn’t likely to have any immediate effects on employers’ benefits and human resource policies, but it serves as a reminder that employers need to stay abreast of the evolving legislative and legal landscape around LGBTQ issues, including various compliance issues attached to federal protections against workplace sex discrimination and domestic partner benefits.