Still, passage of the RFMA was a bi-partisan effort. The Senate passed the bill on November 29, 2022, with a vote of 61 to 36, with 12 Republicans joining their Democratic colleagues in support of the proposal. After passage by the Senate, President 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. . . [A]fter the House passes this legislation and sends it to my desk, […] I will promptly and proudly sign it into law." On Tuesday night, the House approved the RFMA with a 258 – 169 vote, including 39 Republicans, and it now heads to President Biden's desk to be signed into law.

Bi-partisan support for the RFMA reflects how a vast majority of Americans now feel about same-sex marriages. In a May 2022 Gallup poll, 71 percent of Americans said they support same-sex marriage with the same rights as traditional 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 and 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 Act 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 new RFMA, that state is still required to recognize any marriage of another state. The federal protections are similarly significant should the Supreme Court erode legal protections to 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 non-compliers and establishes a private right of action by individuals for violations.

Are there any 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 this 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 before passage of the Act.

Under the Supreme Court decisions in Windsor and Obergefell, employment and benefits are secure for same-sex couples. By example, same-sex spouses will continue to receive the same deference as an opposite-sex spouse when it comes to requiring their consent to change their spouse's 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 (ERISA) 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 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/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 your business or your employees.