Respect for Marriage Act Signals that Same-Sex Marriage Will Remain Law of the Land

​The Respect for Marriage Act (RFMA) was initially introduced this summer in reaction to the Supreme Court overturning Roe v. Wade in Dobbs v. Jackson Women's Health Organization. Lawmakers were concerned that same-sex marriage protections would be revoked next, and those fears were stoked by Justice Clarence Thomas' concurring opinion in Dobbs, suggesting that the court revisit its historic 2015 decision in Obergefell v. Hodges that legalized and mandated recognition of same-sex marriage nationwide. Supporters of the RFMA felt they needed to act quickly after the midterm elections—before control of the U.S. House of Representatives flipped to the Republican Party.

Nonetheless, passage of the RFMA was a bipartisan effort. The Senate passed the bill on Nov. 29 with a vote of 61 to 36, and 12 Republicans joining their Democratic colleagues in support of the proposal.

After passage by the Senate, President Joe Biden said, "For millions of Americans, this legislation will safeguard the rights and protections to which LGBTQI+ and interracial couples and their children are entitled. … After the House passes this legislation and sends it to my desk … I will promptly and proudly sign it into law."

On Dec. 8, the House approved the RFMA with a 258-169 vote, including 39 Republican yeses. Biden signed it into law on Dec. 13.

Bipartisan support for the RFMA reflects how a vast majority of Americans now feel about same-sex marriage. In a May 2022 Gallup poll, 71 percent of Americans said they support same-sex marriage bestowing the same rights as opposite-sex marriage. Only 27 percent were supportive of same-sex marriage when the poll was first taken in 1996.

How Does the RFMA Affect Current Law?

The RFMA codifies the definition of marriage to include same-sex couples for the first time under a federal statute; repeals the Clinton-era Defense of Marriage Act (DOMA), which defined a spouse only as a person of the opposite sex; and provides statutory authority for same-sex and interracial marriages. The RFMA requires states and the federal government to recognize and "give full faith and credit" to same-sex and interracial marriages conducted in other states.

Although passage of the RFMA is highly symbolic, the legal importance of the RFMA is as a preventive measure in the wake of Dobbs. Should the Supreme Court overturn its Obergefell decision, a state could ban same-sex marriages from occurring in that state; however, under the RFMA, that state is still required to recognize same-sex marriages from other states. The federal protections are similarly significant should the Supreme Court erode legal protections for married same-sex and interracial couples.

Distinctly, the RFMA does not require all states to allow same-sex marriage, as Obergefell does, nor does it prohibit states from banning or restricting same-sex marriage if Obergefell were overturned. In fact, some 30 states still have same-sex marriage bans on the books.

The act also allows the Department of Justice to bring a civil action against noncompliers and establishes a private right of action by individuals for violations.

Religious Exemptions

There was great debate in the Senate over amendments providing religious liberty protections. These amendments clarify the responsibilities of for-profit religious groups and eliminate uncertainty for for-profit and nonprofit religious groups alike. Under the RFMA, nonprofit religious organizations are not required to "provide services, accommodations, advantages, facilities, goods or privileges for the solemnization or celebration of a marriage."

This protection covers churches, mosques, synagogues, temples, nondenominational ministries, mission organizations, religious education institutions and faith-based social agencies, including their respective employees. Any refusal to provide marriage advantages or services, as listed above, "shall not create any civil claim or cause of action" against such a nonprofit.

How Does the RFMA Affect Employers?

This certainty, and reassurance in the event of an overturn of Obergefell, are the main takeaways from the RFMA: Same-sex families still enjoy the same company benefits and protections as they did before the passage of the act.

Under the Supreme Court decisions in U.S. v. Windsor and Obergefell, employment and benefits are secure for same-sex couples. For example, same-sex spouses will continue to receive the same deference as opposite-sex spouses when it comes to requiring their consent to change their spouses' tax-qualified retirement plan beneficiaries. By marriage, any spouse will remain the default beneficiary of a participant without an affirmative designation.

Employer health plans governed by the Employee Retirement Income Security Act must encompass spousal benefit coverage for same-sex spouses. By further example, adoption tax benefits are afforded to same-sex families.

Employees from same-sex families remain protected under Title VII of the Civil Rights Act of 1964 from discrimination based on sexual orientation or gender identity, regardless of state or local laws.

Companies should review their existing policy manuals and guides for benefits and operations to ensure compliance with current law in these areas. Particularly, companies may consider revising their maternity and paternity leave policies to include primary and secondary caretaker references instead.

This is an opportunity to ensure compliance and eliminate issues down the road for employers and their employees.

Samuel Lanier Felker is an attorney in the Nashville, Tenn., and Fort Lauderdale, Fla., offices of Baker Donelson. He can be reached at samfelker@bakerdonelson.com. Caitlin Colley is an attorney in Baker Donelson's Atlanta office. She can be reached at ccolley@bakerdonelson.com.