President Joe Biden signed the Respect for Marriage Act (RFMA) into law as Public Law No. 117-228 on Tuesday, December 13, 2022. The RFMA provides statutory protection for same-sex marriage and interracial marriage. The bill was introduced following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), that the right to an abortion is not protected by the U.S. Constitution. While the RFMA is not likely to have a significant impact on Hawaii employers, here are some points to note.

How did we get here?

Prior to the RFMA, same-sex marriage was federally protected under Obergefell v. Hodges, 576 U.S. 644 (2015) and interracial marriage was protected under Loving v. Virginia, 388 U.S. 1 (1967). These rights were found in Constitution’s right to privacy, as was the right to an abortion under Roe v. Wade, 410 U.S. 113 (1973). However, in light of the Court overturing Roe, concurring opinions in Dobbs specifically called into question the other privacy rights in the Court’s earlier decisions in Obergefell and Loving. For now, Obergefell and Loving are still in-tact.

Full faith and credit given to marriage equality

The RFMA specifically repeals the 1996 Defense of Marriage Act (DOMA), which defined marriage as being between one man and one woman and did not require states to recognize same-sex marriages conducted in other states. DOMA was invalidated by the Supreme Court in United States v. Windsor, 570 U.S. 744 (2013), and Obergefell, though it remained on the books as it was not formally repealed until now. The RFMA does not require states to allow marriage between same-sex couples, but it does prohibit states from denying recognition and rights (i.e., full faith and credit) to valid marriages from other states because of the sex, race, ethnicity, or national origin of the individuals.

What does this mean for Hawaii employers?

The RFMA is not likely to have a significant impact on Hawaii employers, as Hawaii law has protected same-sex marriage since the Hawaii Marriage Equality Act of 2013. However, states have widely varying laws regarding same-sex marriage. The National Conference of State Legislatures reported earlier this year that half the states have “trigger” laws under which same-sex marriage would be prohibited immediately if Obergefell were overturned, while several other states have laws that could effectively ban same-sex marriage in that state. Interestingly, Hawaii is noted to be in a unique situation in that our Constitution allows the legislature to prohibit same-sex marriage, but does not require it.