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Same-Sex, Interracial Marriages Federal Bill Takes Step Toward Approval

On November 29, 2022, the U.S. Senate passed the Respect for Marriage Act, which would guarantee marriage equality, including for interracial and same-sex couples, under federal law. The bill, H.R. 8404, passed the Senate in a 61-36 vote with bipartisan support. The bill must still be voted on by the U.S. House of Representatives, which passed a similar version in July, before it goes to President Biden’s desk for approval.

The bill would require that marriages between two individuals be recognized as long as the marriage was valid in the state where it was performed. The bill would not require all states to allow the performance of same-sex marriages, which is currently the law under the Supreme Court of the United States 2015 decision in Obergefell v. Hodges. The bill would also empower 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.

The bill would further formally repeal the 1996 Defense of Marriage Act, which defined marriage under federal law as being between one man and one woman. The law has 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.

Additionally, the bill would provide protections for religious liberties. Specifically, 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 bill. The bill explicitly would not recognize polygamous marriages.

Key Takeaways

Marital status is determinative of certain benefits under employee benefit plans. Still, the Respect of Marriage Act, if enacted, would not currently impact employee benefits for most plans, as all states are required to recognize and license same-sex marriages under the Obergefell decision. Prior to Obergefell, state insurance departments, state taxing authorities, and state domestic relations courts were not required to recognize same-sex marriages.

However, there was a push to pass the Respect of Marriage Act to enshrine recognition of same-sex and interracial marriages out of concern that the Supreme Court may overturn the Obergefell and prior marriage equality rulings following its June decision in Dobbs v. Jackson Women’s Health Organization. That case overturned longstanding precedent holding there was a constitutional right to abortion access and left the issue up to individual states. In a dissenting opinion, Justice Clarence Thomas suggested that the high court should “reconsider” a whole line of cases, including on marriage equality, and specifically mentioned Obergefell.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 340

About this Author

Stephen Riga, Ogletree Deakins Law Firm, Labor Law and Privacy Attorney
Of Counsel

Mr. Riga concentrates his practice in the area of employee benefits and privacy and security issues.

Mr. Riga's benefits practice includes work with funds and employers to design, maintain, merge and terminate qualified retirement plans and health and welfare plans. Mr. Riga prepares determination letters and voluntary compliance program submissions and assists employers and funds on COBRA, Medicare Part D, and HIPAA compliance. Mr. Riga evaluates contribution and withdrawal liability obligations, and identifies retirement and health and welfare...

Nonnie Shivers, Ogletree Deakins Law Firm, Employment Litigation Attorney

Nonnie partners with employers and managers in three primary ways: litigation avoidance through proactive counseling and training; investigations and resolutions when pre-litigation concerns arise; and litigating legally complex and factually challenging cases to defend employer’s actions.  

Nonnie advises and counsels private and public employers in all aspects of employment law. Nonnie regularly partners with clients to plan and implement reductions in force, severance plans and agreements, and pre-litigation disciplinary matters. Nonnie...

Senior Marketing Counsel

In the Senior Marketing Counsel role, Zachary develops strategy for the firm’s blog and other content. He serves as a lead writer for articles and blog posts for publication on the firm’s website both individually and in consultation with firm attorneys. He also works closely with the Client Services department and firm attorneys to develop relevant content, including through use of webinars, publications, blogs, podcasts, and graphics.

Prior to joining Ogletree Deakins, Zachary served as a Senior Reporter for Law360, a leading online legal news publication, covering the sports and...