On December 13, 2022, President Joe Biden signed H.R. 8404, known as the Respect for Marriage Act, into law, guaranteeing marriage equality for same-sex and interracial couples under federal law. The law passed both houses of the U.S. Congress with bipartisan support, and the signing took place two weeks after the U.S. Senate voted 61–36 to approve it.
The Respect for Marriage Act requires that states recognize marriages between two individuals so long as the marriage was legal in the state where it was performed. The law also formally repeals the 1996 Defense of Marriage Act, which had defined marriage under federal law as being between one man and one woman. That law had remained on the books even though it was struck down by the Supreme Court of the United States in the 2013 decision in United States v. Windsor. The bill also empowers the attorney general to bring civil actions for declaratory and injunctive relief against those acting under the color of state law who refuse to recognize valid marriages.
However, the law will not require all states to allow the performance of same-sex marriages as is currently the law under the Supreme Court’s 2015 decision in Obergefell v. Hodges. The bill also explicitly does not recognize polygamous marriages.
In remarks made at the signing, President Biden stated that it is a “day America takes a vital step toward equality, toward liberty and justice, not just for some, but for everyone … [and] toward creating a nation where decency, dignity, and love are recognized, honored, and protected.”
The law has further been praised by some religious groups for its recognition of religious liberty on the issue of marriage. The law recognizes that there are “[d]iverse beliefs about the role of gender in marriage … held by reasonable and sincere people based on decent and honorable religious or philosophical premises.” As such, churches and religious institutions would “not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage” under the law.
While the Supreme Court’s decision in Obergefell guarantees the right to same-sex marriages, the high court’s June ruling in Dobbs v. Jackson Women’s Health Organization overturned longstanding precedent holding there was a constitutional right to abortion access. That ruling has raised concerns that the high court will similarly reverse its recent precedent in Obergefell if again presented with the issue of marriage equality. Fueling those concerns is Justice Clarence Thomas’s concurring opinion in Dobbs, in which he suggested that the high court “should reconsider” its whole line of “substantive due process cases,” including Obergefell.
The Respect for Marriage Act further comes in the context of the Supreme Court’s consideration of a case on whether a website designer can openly refuse to provide wedding website services to same-sex couples under a state law that prohibits discrimination in public accommodations.
Key Takeaways
Given that the Respect for Marriage Act does not change the law, as it codifies rights established by the Windsor and Obergefell decisions, it will not immediately impact employee benefits. However, the law will serve as a backstop for same-sex couples should the Supreme Court revisit the issue of marriage equality. Prior to Obergefell, states were not required to recognize same-sex marriages based on federal law.
The Respect for Marriage Act reinforces the current rule that married same-sex couples receive the legal benefits of marriage. For instance, employee benefits plans governed by the Employee Retirement Income Security Act (ERISA) will continue to provide spousal benefits to married same-sex couples and same-sex couples will still receive marriage tax-benefits.
Ogletree Deakins will continue to monitor and report on developments with marriage equality legislation and post updates to the firm’s Employment Law and Employee Benefits and Executive Compensation blogs. Important information for employers is also available via the firm’s webinar and podcast programs.
