Respect for Marriage Act Would Protect Same-Sex Couples’ Company Benefits

Allen Smith, J.D. By Allen Smith, J.D. November 30, 2022

Editor's Note: The U.S. Senate passed the Respect for Marriage Act on Nov. 29. The U.S. House of Representatives passed the bill on Dec. 8, sending it to President Joe Biden for his signature.

Same-sex couples can continue enjoying company benefits just as opposite-sex couples do now that the Respect for Marriage Act is on track to be enacted. The legislation, intended to address fears that the U.S. Supreme Court might reverse its decision recognizing same-sex marriage, secured enough bipartisan support in a Senate vote on Nov. 16 to overcome the threat of a filibuster and head to the Senate floor for a majority vote. Every Senate Democrat and 12 Republicans voted to advance the measure.

"This legislation provides certainty, which is always helpful to employers and employees," said Sam Schwartz-Fenwick, an attorney with Seyfarth in Chicago. "Employers have already made policy and benefit plan changes to accommodate the legalization of same-sex marriage. After the concurrence by Justice [Clarence] Thomas in Dobbs, there was uncertainty as to whether these changes would remain the legal standard or whether the Supreme Court would reverse its prior ruling."


In Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, Thomas wrote in a concurrence that the court should reconsider Obergefell v. Hodges—the ruling that protects same-sex marriage.

Thomas argued that the Constitution's Due Process Clause does not secure a right to an abortion or any other rights, and he urged the court to apply that reasoning to other landmark cases. He contended that Obergefell, among other decisions, was "demonstrably erroneous" and that the court has "a duty to 'correct the error' established in those precedents."

However, Justice Brett Kavanaugh said in a separate concurring opinion that the reversal of Roe did not necessarily mean the court would overturn other landmark decisions. "I emphasize what the court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents," Kavanaugh said.

Thomas' concurrence was met with concern among LGBTQ organizations and individuals.

Geri Johnson, chief operating officer for public relations firm Next PR, who is both female and queer, said, "To be told that not only is my bodily autonomy being stripped away by the very people assigned to 'protect' me, but next could be my legal right to be married to my wife is troubling. What's more is that I know I'm not the only one on my team experiencing these emotions as I attempt to focus on work today."

Respect for Marriage Act

With the Respect for Marriage Act, which repeals the federal Defense of Marriage Act (DOMA), employers and employees can have more confidence that same-sex marriage will remain legal in the United States, Schwartz-Fenwick said. Section 3 of DOMA defined a spouse as being only a person of the opposite sex.

The Respect for Marriage Act will, essentially, codify the Supreme Court's ruling in Obergefell, said Jonathan Yarbrough, an attorney with Constangy, Brooks, Smith & Prophete in Asheville, N.C., and Raleigh, N.C.

"This certainty will help LGBTQ+ employees continue to have the confidence to come out at work," Schwartz-Fenwick stated. "This is a positive sign both for employee well-being and also for the bottom line, as every study reflects that objective performance metrics increase when employees can bring their full self to work."

While the ruling in Dobbs called into question whether the Constitution contains a right to privacy that extends to same-sex marriage, the Respect for Marriage Act will codify that same-sex marriage is legal under federal law.

"The legislation is also in line with the sentiment of the 70 percent of the American people who support same-sex marriage," Schwartz-Fenwick said.

Benefits Secure for Same-Sex Couples

Two groundbreaking Supreme Court decisions have already settled long-standing questions about employee benefits for same-sex spouses.

In June 2013, the Supreme Court's ruling in U.S. v. Windsor overturned Section 2 of DOMA, after which the spousal benefits and protections under federal law were extended to all legally sanctioned same-sex marriages. In June 2015, the Supreme Court's Obergefell ruling recognized same-sex marriages nationwide.

"Federal and state law no longer distinguish between same-sex or opposite-sex marriages," said Todd Solomon, an attorney with McDermott Will & Emery in Chicago.

As regards employee retirement benefits, the effects of these decisions were far-reaching, including:

  • For tax-qualified retirement plans, a same-sex spouse must consent to a participant's designation of any other beneficiary.
  • Absent an affirmative designation, a participant's same-sex spouse will be the default beneficiary.
  • Same-sex spouses who divorce may enter into a qualified domestic relations order to divide retirement plan assets.

For fully insured health plans, which are governed under the federal Employee Retirement Income Security Act and applicable state laws, "same-sex spouses must be extended spousal benefit coverage by employers," Solomon noted.

After Windsor and Obergefell but before the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibited discrimination based on sexual orientation, Solomon noted that self-insured spouses "technically are not required to be extended spousal benefit coverage, but employers that continue to provide coverage only to opposite-sex spouses face significant risk of legal challenges under federal discrimination." Now those litigation risks are even greater.

New Child Benefits

In addition, after these decisions, adoption benefits that receive tax-favored treatment can be provided to same-sex couples on an equal basis. Another issue involves benefits language with regard to maternity and paternity leave. Solomon noted that some companies have revised language in benefits plans to refer to a primary caretaker and a secondary caretaker.

Enactment of Respect for Marriage Act Expected Soon

Passage of the Respect for Marriage Act will happen after Thanksgiving, predicted Sen. Chuck Schumer, D-N.Y., the Senate majority leader, according to The New York Times.

"The legislation will be put to a vote in the Senate, where it only needs 50 votes to pass, and then it will be voted on in the House," Schwartz-Fenwick said. "If it passes both chambers, then the bill will be sent to the president." President Joe Biden is expected to sign the bill.



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