20 Dec How Much Respect Will Same-Sex Marriages Be Given Under The Respect For Marriage Act?
Last month President Biden signed into law the Respect for Marriage Act that achieved bipartisan support. The law gives protection of federal benefits to same-sex legally married couples who move to another state where the laws do not recognize same-sex marriage.
For example, if a same-sex married couple moves from California (where same-sex marriage is recognized) to Louisiana (where it is not), Louisiana (or other states that do not recognize same-sex marriage) cannot jeopardize federal benefits afforded to a spouse including (but not limited to):
- Health insurance – Under ERISA (Employee Retirement Income Security Act).
- Unlimited marital deduction – No federal estate tax on death of the first spouse to the extent the surviving spouse is the beneficiary.
- Estate planning – There are many estate planning strategies used in reducing estate taxes of a married couple.
- Social Security benefits – Often a surviving spouse receives more income based on earnings of the deceased spouse.
- Retirement plans and benefits – A surviving spouse is sometimes entitled to a federal pension benefit or is sometimes required to be the beneficiary of certain retirement accounts.
- Family Leave Act – Benefits afforded to a married couple (right to stay at home with a child) would still be applicable if the couple moves to any state.
- Veteran’s benefits – Certain Veteran’s benefits are beneficial to a surviving spouse.
However, the Respect for Marriage Act is only applicable to federal (not state) benefits. Furthermore, as a compromise to get bipartisan passage, there was an effort to not effect religious liberties. Religious organizations will not be required to provide any services, facilities or goods for a same-sex marriage or lose its tax-exempt status.
It is unclear if this will be extended to individuals with strong religious beliefs. The Supreme Court of the United States (SCOTUS) has recently agreed to hear a case of an evangelical Christian graphic artist who does not want to create wedding websites for same-sex couples and her failure to do so would be in violation of the anti-discrimination laws of Colorado (where the case originated). The graphic artist’s position is that her religious belief is a marriage can only be between a man and a woman – which was the previous law under the Defense of Marriage Act that was repealed by the Respect for Marriage Act. The agreement is based on freedom of speech rather than freedom of religion (otherwise religious beliefs could be anything including the right to discriminate). The question becomes whether a public policy accommodations law compel the graphic design artist to speak or stay silent and would that violate the Free Speech Clause of the First Amendment.
So, will a vendor be forced to serve a same-sex married couple in violation of that vendor’s religious beliefs or free speech rights or can businesses refuse service based on race, sex, religion or nationality or sexual orientation? The conservative justices of the present SCOTUS will likely be more sympathetic to religious freedoms and free speech arguments.
Thus, notwithstanding the passage of the Respect for Marriage Act, the law is limited in scope. Although the law may set a national policy to protect same-sex marriages, it only goes so far. It is likely the battle between same-sex marital rights vs. religious freedom or freedom of speech rights will continue for many years to come.
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