What the Respect for Marriage Act Actually Does (and Doesn't Do)
Susan Rinkunas
Tue, December 13, 2022
House Speaker Nancy Pelosi (D-CA) participates in a bill enrollment ceremony alongside Senate Majority Leader Chuck Schumer (D-NY) and a bipartisan group of Senators and Representatives for the Respect For Marriage Act at the U.S. Capitol Building on December 08, 2022 in Washington, DC.
On Tuesday, President Joe Biden signed into law the Respect for Marriage Act, which offers protections for same-sex marriage and interracial marriage in the event that the Supreme Court overturns the landmark cases Obergefell v. Hodges and Loving v. Virginia. (Those cases legalized same-sex and interracial marriages, respectively.)
Notably, this bill does not codify Obergefell into federal law—so it doesn’t require every state to issue licenses for these marriages, as they currently must. Instead, the legislation says that both the federal government and states have to recognize lawful marriages.
The federal part of this equation means the bill repeals the Defense of Marriage Act from 1996, which created a federal ban on same-sex marriage. (The court overturned the law in the 2013 case U.S. v. Windsor, but it was never repealed and it could be revived again, like state bans on abortion after Roe v. Wade fell.) The state part means couples who were legally married elsewhere can have that marriage recognized in any state in the U.S., and the state has to recognize any “right or claim arising from such a marriage.” If a state denies a valid marriage despite the bill, the RFMA allows both the couple and the government to file a federal lawsuit, as legal journalist Mark Joseph Stern explains in Slate.
Stern described RFMA as a backstop to ensure important benefits like healthcare as well as parental rights:
In short, this bill goes as far as today’s Supreme Court could conceivably allow. If it passes and Obergefell falls, states can resume denying marriage licensing to same-sex couples. They might even be able to nullify the same-sex marriage licenses it provided under Obergefell. But couples who face such discrimination can travel to another state, obtain a new license, and compel their home state to recognize it, along with the rights and privileges it provides. And their marriage will receive full protection under federal law. As far as backstops go, it doesn’t get much better than the RFMA.
The bill passed the House in July and the Senate in November, with bipartisan support in both chambers. The Associated Press explained that the bill “neither fully codifies the U.S. Supreme Court decision that enshrined a federal right to same-sex marriage nor details all religious liberty concerns of those who object to it.”
The threat that the court could overturn Obergefell and Loving is not an idle one. Lawmakers took this step because when the Supreme Court overturned Roe in June, Justice Clarence Thomas put a target on marriage equality and other sexual privacy rights.
In a concurring opinion, Thomas said the court should also reconsider Obergefell and called both it and Griswold v. Connecticut, the case that legalized birth control for married couples, “demonstrably erroneous.” (He notably excluded Loving, a related sexual privacy case that protects his own marriage to MAGA activist Ginni Thomas.) In Supreme Court speak, this opinion was Thomas rolling out the red carpet for someone to challenge these rulings.
Now why wouldn’t Congress pursue a bill that codifies the Court’s rulings in Obergefell and Loving? Because it fears that same court now has a 6-3 conservative supermajority and would strike it down.
Here’s Stern again:
Why did Congress draw a distinction between licensing and recognizing marriages? Because it wanted to remain on firm constitutional ground, and that’s is as far as the Supreme Court could plausibly let it go. Time and again, the court has ruled that the federal government cannot “commandeer” states to enforce federal laws or pass specific statutes. If Congress compelled states to license same-sex marriages, the judiciary would invalidate the law as a violation of this anti-commandeering doctrine.
The federal government’s authority to make states recognize same-sex marriages, by contrast, is extremely well-established, and very likely to be upheld.
Translation: The Supreme Court itself can make every state license marriages, but Congress cannot. So this bill is the best we’re gonna get, for now.
What Will Happen to Same-Sex Marriage Around the Country if Obergefell Falls
Jasmine Aguilera
Wed, December 14, 2022
WASHINGTON, DC - APRIL 28: Supporters of gay marriage stand ben
Supporters of same-sex marriage stand beneath a large rainbow flag in front of the U.S. Supreme Court in Washington, D.C., April 28, 2015.
Jasmine Aguilera
Wed, December 14, 2022
WASHINGTON, DC - APRIL 28: Supporters of gay marriage stand ben
Supporters of same-sex marriage stand beneath a large rainbow flag in front of the U.S. Supreme Court in Washington, D.C., April 28, 2015.
Credit - Astrid Riecken —The Washington Post/Getty Images
When the Supreme Court overturned the landmark abortion case Roe v. Wade this summer, Justice Clarence Thomas’s concurring opinion named several other cases he wants the high court to reconsider, including Obergefell v. Hodges, the 2015 case that made same-sex marriage legal in every U.S. state.
The opinion galvanized members of the LGBTQ community, advocates, and lawmakers in both parties to create federal legislation with an extra layer of protection for marriage rights. This week, President Joe Biden signed the Respect for Marriage Act into law.
But if the Supreme Court does decide to overturn Obergefell, marriage rights could still be rolled back around the country—the new law doesn’t prevent states from refusing to license the unions.
The Respect for Marriage Act requires that all states recognize same-sex unions, but doesn’t require states to issue them. In the seven years since Obergefell was decided, same-sex marriage bans in 35 states across the country have lain dormant. But should Obergefell be overturned, they would again be activated. Similar to what happened to abortion rights after the Supreme Court decided Dobbs v. Jackson Women’s Health Organization in June and overturned Roe, people’s access to same-sex marriage licenses would depend on geography.
“It’s going to be chaotic, and each state is going to have to figure out whether they now have a law on the books that is enforceable,” says Leonore Carpenter, associate professor of law at Rutgers University.
Read More: Clarence Thomas Signals Same-Sex Marriage and Contraception Rights at Risk After Overturning Roe v. Wade
The 35 states that currently have inactive bans on same-sex marriage are largely concentrated in the American South, from Texas to Florida, according to an analysis by the Movement Advancement Project, an independent think tank that advocates for equality by conducting research. Some Midwestern states like Ohio, Michigan, and Wisconsin also ban same-sex marriages. In the West, states from Arizona to Montana ban the unions.
If the Supreme Court were to overturn Obergefell, the new federal law guarantees that a same-sex couple who was married in Illinois, for example, would still be recognized as married if they moved to Virginia, which has a ban on same-sex marriage that could be reactivated. But a same-sex couple wishing to be married in Virginia might have to travel out of state to get their marriage license. The Respect for Marriage Act also provides similar protections for interracial marriages.
The dynamic could create a challenge for couples who want to get married but can’t afford to travel to another state for the license. That would exclude such couples from accessing the benefits that come with marriage, including inheritance, tax benefits, and the ability to make health care decisions for a spouse who is unable to make them themselves. “You will start to see a real economic justice problem,” Carpenter says.
Bryan Wilson, who co-founded the Pride Center West Texas in Odessa, Texas, says the Respect for Marriage Act is a win for him and his husband, and other LGBTQ couples who are already married, but worries it doesn’t do enough for young or unmarried people in states like Texas. “I have youth who go, ‘Well, if on the off chance I ever want to get married in about six, seven years, 10 years, 15 years, I’m probably not going to be able to do it here anyway, so I hope I’ve moved to California, New York, or Washington,'” Wilson says.
“There will be enough respect for marriage when every state in the union, every territory, has legalized it as well as enshrined it in their constitution, that same-sex marriage is allowed,” Wilson adds.
Read More: Jim Obergefell Helped Secure the Right to Same-Sex Marriage. Now He’s Fighting to Keep It
For LGBTQ people living in states with dormant bans on the books who are vulnerable to financial insecurity, face discrimination, or struggle with their mental health, overruling Obergefell could cause a different kind of fallout, experts warn. “It would be a deep psychological and emotional blow to a lot of gay, lesbian, and bisexual people to be told that even if their state has to recognize a marriage formed out of the state, that their state nonetheless disapproves of their relationship and effectively considers them second class citizens,” says Michael Boucai, a law professor at the University of Buffalo.
But Boucai is skeptical about whether Obergefell is truly in jeopardy. Roe v. Wade was decided by the Supreme Court based on an interpretation of the 14th Amendment and the word “liberty” in that amendment, he says. The same interpretation was applied when deciding Obergefell, but the Justices more heavily weighed the amendment’s equal protection clause.
“Unlike Roe v. Wade, Obergefell wasn’t simply decided on liberty grounds, it was also decided on equality grounds,” Boucai says. “Though I think that there’s every reason to be worried, and it’s good to err on the side of caution, and I’m glad that the Democrats were able to score this political win with Republican support, I would not be panicking right now about the prospect of Obergefell being overruled.”
When the Supreme Court overturned the landmark abortion case Roe v. Wade this summer, Justice Clarence Thomas’s concurring opinion named several other cases he wants the high court to reconsider, including Obergefell v. Hodges, the 2015 case that made same-sex marriage legal in every U.S. state.
The opinion galvanized members of the LGBTQ community, advocates, and lawmakers in both parties to create federal legislation with an extra layer of protection for marriage rights. This week, President Joe Biden signed the Respect for Marriage Act into law.
But if the Supreme Court does decide to overturn Obergefell, marriage rights could still be rolled back around the country—the new law doesn’t prevent states from refusing to license the unions.
The Respect for Marriage Act requires that all states recognize same-sex unions, but doesn’t require states to issue them. In the seven years since Obergefell was decided, same-sex marriage bans in 35 states across the country have lain dormant. But should Obergefell be overturned, they would again be activated. Similar to what happened to abortion rights after the Supreme Court decided Dobbs v. Jackson Women’s Health Organization in June and overturned Roe, people’s access to same-sex marriage licenses would depend on geography.
“It’s going to be chaotic, and each state is going to have to figure out whether they now have a law on the books that is enforceable,” says Leonore Carpenter, associate professor of law at Rutgers University.
Read More: Clarence Thomas Signals Same-Sex Marriage and Contraception Rights at Risk After Overturning Roe v. Wade
The 35 states that currently have inactive bans on same-sex marriage are largely concentrated in the American South, from Texas to Florida, according to an analysis by the Movement Advancement Project, an independent think tank that advocates for equality by conducting research. Some Midwestern states like Ohio, Michigan, and Wisconsin also ban same-sex marriages. In the West, states from Arizona to Montana ban the unions.
If the Supreme Court were to overturn Obergefell, the new federal law guarantees that a same-sex couple who was married in Illinois, for example, would still be recognized as married if they moved to Virginia, which has a ban on same-sex marriage that could be reactivated. But a same-sex couple wishing to be married in Virginia might have to travel out of state to get their marriage license. The Respect for Marriage Act also provides similar protections for interracial marriages.
The dynamic could create a challenge for couples who want to get married but can’t afford to travel to another state for the license. That would exclude such couples from accessing the benefits that come with marriage, including inheritance, tax benefits, and the ability to make health care decisions for a spouse who is unable to make them themselves. “You will start to see a real economic justice problem,” Carpenter says.
Bryan Wilson, who co-founded the Pride Center West Texas in Odessa, Texas, says the Respect for Marriage Act is a win for him and his husband, and other LGBTQ couples who are already married, but worries it doesn’t do enough for young or unmarried people in states like Texas. “I have youth who go, ‘Well, if on the off chance I ever want to get married in about six, seven years, 10 years, 15 years, I’m probably not going to be able to do it here anyway, so I hope I’ve moved to California, New York, or Washington,'” Wilson says.
“There will be enough respect for marriage when every state in the union, every territory, has legalized it as well as enshrined it in their constitution, that same-sex marriage is allowed,” Wilson adds.
Read More: Jim Obergefell Helped Secure the Right to Same-Sex Marriage. Now He’s Fighting to Keep It
For LGBTQ people living in states with dormant bans on the books who are vulnerable to financial insecurity, face discrimination, or struggle with their mental health, overruling Obergefell could cause a different kind of fallout, experts warn. “It would be a deep psychological and emotional blow to a lot of gay, lesbian, and bisexual people to be told that even if their state has to recognize a marriage formed out of the state, that their state nonetheless disapproves of their relationship and effectively considers them second class citizens,” says Michael Boucai, a law professor at the University of Buffalo.
But Boucai is skeptical about whether Obergefell is truly in jeopardy. Roe v. Wade was decided by the Supreme Court based on an interpretation of the 14th Amendment and the word “liberty” in that amendment, he says. The same interpretation was applied when deciding Obergefell, but the Justices more heavily weighed the amendment’s equal protection clause.
“Unlike Roe v. Wade, Obergefell wasn’t simply decided on liberty grounds, it was also decided on equality grounds,” Boucai says. “Though I think that there’s every reason to be worried, and it’s good to err on the side of caution, and I’m glad that the Democrats were able to score this political win with Republican support, I would not be panicking right now about the prospect of Obergefell being overruled.”
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