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Respect for Marriage Act Codifies Federal and State Recognition of Same-Sex Marriages, Repeals DOMA



Respect for Marriage Act, Pub. L. No. 117-228 (Dec. 13, 2022)

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Congress has passed, and the President has signed, bipartisan legislation requiring federal and state governments to recognize same-sex marriages that were valid where and when they were entered into and formally repealing the Defense of Marriage Act (DOMA). As background, in 2013, the U.S. Supreme Court held in United States v. Windsor that DOMA’s limitation of federal recognition of marriage to opposite-sex spouses was unconstitutional (see our Checkpoint article). DOMA has remained on the books since that time, even though the limitation is no longer enforceable. In 2015, the Court ruled in Obergefell v. Hodges that all states must allow same-sex couples to marry and must recognize same-sex marriages lawfully performed in other jurisdictions (see our Checkpoint article). The Respect for Marriage Act codifies portions of the two decisions and, in addition, prohibits states from refusing to recognize marriages that were legally entered into in other states on the basis of race, ethnicity, or national origin. The Act states that it does not diminish or abrogate religious liberty and conscience protections otherwise available under the Constitution and specifies that nonprofit religious organizations will not be required to provide services or accommodations for the solemnization or celebration of a marriage.

EBIA Comment: The Respect for Marriage Act is largely intended as a “backstop” for Windsor and Obergefell, and its central provisions will only become relevant if the Court overturns those decisions. While the Act stops short of requiring states to issue marriage licenses to same-sex couples, it protects couples in existing marriages from having their marriages invalidated by a more conservative Court and provides consistency by ensuring that current and future marriages will be recognized from state to state. The Act also ensures that married same-sex couples will continue to receive the rights and privileges of marriage granted by the federal government. This includes many rights under employee benefit plans that are tied to marital status, such as favorable tax treatment for employer-provided spousal health coverage and rights under COBRA and HIPAA. For more information, see EBIA’s Employee Benefits for Domestic Partners at Sections II.C (“Federal Law: The Supreme Court’s Windsor and Obergefell Decisions”) and II.D (“Major Benefit Implications of Supreme Court Decisions”).

Contributing Editors: EBIA Staff.

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