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What does the FMLA have to do with the Respect for Marriage Act?

The president is expected to sign this bill into law if it lands on his desk

Posted December 2, 2022

The Respect for Marriage Act (HR 8404) is a bill in the U.S. Congress that, if enacted, would repeal the Defense of Marriage Act. The bill would replace provisions that define aspects of marriage for purposes of federal law (such as the FMLA).

Potential changes include, for example, replacing the provision that says marriage is between a man and a woman, as well as the term spouse as being a person of the opposite sex. Revised provisions would recognize any marriage that is valid under state law.

The bill also repeals and replaces provisions that do not require states to recognize same-sex marriages from other states.


In 2013, the U.S. Supreme Court held that the current provisions of the Defense of Marriage Act were unconstitutional in United States v. Windsor.

In 2015, the Supreme Court held that state laws barring same-sex marriages were unconstitutional in Obergefell v. Hodges.

Since the Supreme Court overturned its precedent set in Roe v. Wade, the Respect for Marriage bill was proposed in response to concerns the Court would reverse its 2015 decision.

The measure was introduced and passed the House in July and the Senate passed it on November 29. It now goes back to the House for a final vote, and it's expected to pass soon. President Biden indicated that he would sign it into law.

What’s this got to do with the FMLA?

The FMLA entitles eligible employees to take job-protected leave to care for family members, including spouses. Under the FMLA, a spouse is defined as a husband or wife.

This definition includes an individual in a same-sex or common law marriage that either:

    • Was entered into in a state that recognizes such marriages; or
    • If entered into outside of any state, is valid in the place where entered into and could have been entered into in at least one state.

The bottom line is, without the Respect for Marriage Act, if the Supreme Court were to overturn its decisions regarding marriage, people in same-sex marriages would lose their FMLA protections.

Some states still have laws banning same-sex marriage and enacting the Respect for Marriage Act would mean that even if the Supreme Court were to overturn its decisions, same-sex marriages would continue to be recognized across the U.S.

The bill would codify the right of states to define marriage, thus keeping the status quo for same sex marriages under the FMLA.

The bill allows the Department of Justice to bring a civil action and establishes a private right of action for violations.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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