December 13, 2022

President Joe Biden has signed the bipartisan Respect for Marriage Act (HR 8404), which aims to protect same-sex and interracial marriages if the US Supreme Court reverses the cases that established the constitutional right to such marriages. Such reversals became a theoretical possibility when raised in one of the opinions overturning a US constitutional right to an abortion (Dobbs v. Jackson Women’s Health Organization (US June 24, 2022)). The bill also revises or repeals certain provisions of the Defense of Marriage Act (DOMA) (Pub. L. No. 104-199).

Supreme Court precedents at stake. In Loving v. Virginia (388 US 1 (1967)), the court held that laws preventing interracial marriages violate the US Constitution. In Obergefell v. Hodges (576 US 644 (2015)), the court similarly opined that all states must issue same-sex marriage licenses and struck down Section 2 of DOMA, which allowed states to ignore same-sex marriages validly performed elsewhere. That ruling came two years after the court struck down Section 3 of DOMA, which barred federal recognition of same-sex marriages (US v. Windsor (570 US 744 (2013)).

Bill would codify some same-sex marriage protections. The Respect for Marriage Act does not codify all parts of the Obergefell decision. The legislation:

  •  Formally repeals DOMA provisions — dormant since Obergefell but still on the books — that define marriage under federal law as only between a man and a woman and allow states to refuse to recognize lawful same-sex marriages entered elsewhere

  • Prohibits a state from denying full faith and credit, any right or any claim relating to out-of-state marriages between two individuals because of sex, race, ethnicity or national origin, though no state would have to issue same-sex marriage licenses

  • Allows the Justice Department to bring a civil action to enforce the law and gives individuals a private right to sue for violations

  • Preserves the religious liberty or conscience protections otherwise available under the US Constitution or federal law

  • Exempts nonprofit religious organizations and their employees from having to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage

    • For this purpose, nonprofit religious organizations include churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice or advancement of religion.
  • Preserves all of an otherwise eligible entity’s or person’s benefits, statuses and rights that do not arise from a marriage, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim or defense

The Respect for Marriage Act shouldn’t have an immediate effect on employers’ benefits and human resource policies. However, the measure serves as a reminder that employers need to stay abreast of the evolving legislative and legal landscape around LGBTQI+ issues, including the various federal compliance obligations related to workplace sex nondiscrimination and domestic partner benefits. Employers also need to monitor any future litigation related to the legislation’s religious liberty or conscience protections.

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Stephanie Rosseau
by Stephanie Rosseau

Principal, Mercer’s Law & Policy Group

Cheryl Hughes
by Cheryl Hughes

Principal, Mercer’s Law & Policy Group

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