On December 13, 2022, President Biden signed the Respect for Marriage Act. 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 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.

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 Respect for Marriage Act specifically states that it does not cover polygamous marriages.