On December 13, President Biden signed the Respect for Marriage Act, which passed the Senate and House with bipartisan support. Many see the bill as a reaction to a concurrence in the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that hinted at some of the justices’ thoughts on privacy rights and questioned whether the Constitution guaranteed the right to same-sex and interracial marriage. The act specifically repeals the federal Defense of Marriage Act from the 1990s and prohibits states from denying “full faith and credit” to any marriage between two individuals based on sex, race, ethnicity, or national origin. The question for employers is how does this act affect your obligations to married employees?

The Act Is a Placeholder

As of today, the U.S. Supreme Court has several decisions that protect marriages. In 1967, in Loving v. Virginia, the Supreme Court struck down state laws banning marriage between individuals of different races. In 2013, in U.S. v. Windsor, the Court held that spousal benefits and protections provided under federal law had to be extended to same-sex married couples. Two years later, in Obergefell v. Hodges, the Court held that all states were required to perform and recognize same-sex marriage. Finally, in 2020 in Bostock v. Clayton County, GA, the Court ruled that Title VII discrimination protections also cover LGBTQ individuals.

All of those decisions are still the law. However, as stated above, some of the Court’s language in Dobbs hinted that the Court might reassess some of those decisions. Nothing has been overturned, and employers are required to continue to meet their obligations to same-sex and interracial couples. With the enactment of the Respect for Marriage Act, at least the marriage-related portions of those decisions are now federal law. Whether the new act draws a constitutional challenge has yet to be seen.

Religious Liberty and Conscience Protections

The act includes a section stating that it cannot be construed to diminish a religious liberty or conscience protection otherwise available to an employer under either the U.S. Constitution or federal law. The act also says that religious organizations are not required to provide services or goods for the “solemnization or celebration of a marriage.” Accordingly, if a religious organization refuses to provide goods or services based on this section, the act does not create a private right of action. These religious objections are the subject of some current litigation, and it is expected that the federal courts will provide guidance.

I Employ Married People — What Do I Need to Know?

Since the Bostock decision in 2020, it is illegal for an employer to discriminate based on sexual orientation. The new Respect for Marriage Act (as well as the current Supreme Court decisions) make clear that employers may not treat same-sex and opposite-sex married employees differently.

• If you offer retirement or insurance plans to married employees, you must treat all types of marriages equally.

• If you offer health benefits for an employee’s spouse, you must offer them to all spouses, without regard to the type of marriage at issue.

The act’s religious and conscience section does not provide a lot of instruction on how it would apply. If an employer decides to treat couples differently based on this section, they should likely tread lightly and expect possible litigation.

One interesting aspect of the Respect for Marriage Act is that it specifically states that it does not cover polygamous marriages. Those continue to be outside the law.