The Respect for Marriage Act

On December 13, 2022, President Biden signed into law the Respect for Marriage Act, a federal law ensuring that all state and federal governments recognize marriages regardless of sex, race, ethnicity, or national origin.

This article provides a short overview of the Respect for Marriage Act and how it applies to same-sex couples.

History of Laws Leading up to the Respect for Marriage Act

In 1996, President Clinton signed the Defense of Marriage Act into law. The Defense of Marriage Act:

• Limited the definition of marriage to the union between one man and one woman,
• Allowed states to refuse recognizing same-sex marriages granted legally in other states, and
• Denied federal benefits and recognition to same-sex couples.

In 2013, the U.S. Supreme Court ruled in United States v. Windsor that the denial of federal recognition of same-sex marriages and federal benefits to same-sex couples under the Defense of Marriage Act is unconstitutional.

In 2015, the U.S. Supreme Court eliminated state bans on same-sex marriages and ruled that same-sex marriage is constitutionally protected under the Due Process and Equal Protection Clause of the 14^th Amendment in Obergefell v. Hodges.

However, in the 2022 Dobbs v. Jackson Women's Health Organization decision—which overturned Roe v. Wade and Planned Parenthood v. Casey—Justice Clarence Thomas specifically suggested that the U.S. Supreme Court reconsider all “substantive due process precedents," including Obergefell. Substantive due process protects fundamental individual rights by limiting infringement upon those rights by the government.

Due to the concern that the U.S. Supreme Court could overturn Obergefell in the future and therefore take away same-sex marriage protections, as well as other protections from substantive due process precedents, the Respect for Marriage Act was reintroduced to Congress by marriage equality proponents in 2022.

What Does the Respect for Marriage Act Do?

The Respect for Marriage Act:

• Requires federal and state governments to recognize the validity of same-sex and interracial marriages granted legally in any state,
• Repeals the Defense of Marriage Act, and
• Protects religious liberty.

Although the Respect for Marriage Act does not require states to allow same-sex couples to marry, it does ensure that every state must recognize same-sex marriages granted legally in other states.

The inclusion of the repeal of the Defense of Marriage Act in the Respect for Marriage Act provides a safeguard should Windsor or Obergefell be overturned. Without the repeal of the Defense of Marriage Act, the original provisions of the Defense of Marriage Act would have stayed legally binding if Windsor or Obergefell were overturned in the future.

However, the Respect for Marriage Act also provides religious exemptions for nonprofit religious organizations by giving them the freedom to decline services or support for same-sex marriages.

Bipartisan Support

The Respect for Marriage Act, written by a group of both Democrat and Republican senators, is the most supported pro-LGBTQ bill passed in Congress.

The vote in the House of Representatives for the Respect for Marriage Act was 258 to 169, with 39 Republicans joining the Democrats and voting in favor. After the bill was amended to include religious protections, it passed the Senate with a vote of 61 to 36, with 12 Republicans voting in favor.

By comparison, the Equality Act—a bill that would ban discrimination on the basis of sex, sexual orientation, and gender identity—passed the House in February 2021 with a close vote of 224 to 206, with only 3 Republicans voting in favor.

Hopefully, this surprising show of bipartisan support will reflect in the passage of the Equality Act, which has been sent to the Senate for deliberation.

Frequently Asked Questions

Can states still refuse to issue marriage licenses to same-sex couples?

Yes. The Respect for Marriage Act (RFMA) only guarantees that all states have to recognize marriage licenses of same-sex couples that were already granted in other states that allow marriage licenses for same-sex couples. If you're a same-sex couple looking to get married and your state laws do not permit licenses for same-sex marriages, you can take a trip over to a state that does, and your state will be required to recognize your marriage under RFMA.

What protections does RFMA provide for interracial couples?

RFMA guarantees the right for an interracial couple to marry. Both the right to interracial marriage and same-sex marriage are ensured as part of a federal statute in the case that these rights are rescinded in the future by the overturning of Loving v. Virginia—which granted Americans the right for an interracial couple to marry—or Obergefell v. Hodges—which granted Americans the right for a same-sex couple to marry.

Did Justice Clarence Thomas target any other rights in his Dobbs v. Jackson Women's Health Organization concurring opinion?

Yes. Justice Clarence Thomas explicitly pointed to both the Griswold v. Connecticut and Lawrence v. Texas cases in addition to Obergefell v. Hodges when referring to his suggestion that the U.S. Supreme Court reconsider all “substantive due process precedents." Griswold granted Americans the right to use contraception, and Lawrence granted the right to engage in consensual private sexual acts.

What happened to the Defense of Marriage Act of 1996 (DOMA)?

After being signed into law by President Clinton in 1996, DOMA faced constitutionality challenges in court. Section 2 of DOMA permitted states to refuse to recognize same-sex marriage licenses granted in other states. Section 3 of DOMA limited the definition of marriage to one man and one woman and codified the federal non-recognition of same-sex marriages. Although DOMA was entirely unenforceable after Windsor and Obergefell, RFMA provided the official repeal of DOMA.

Does RFMA provide protections for transgender people?

No. Unfortunately, RFMA does not provide any protections for transgender people. However, if Congress passes the Equality Act, LGBT people would be extended protections against discrimination in not only employment—as granted in the U.S. Supreme Court's decision in Bostock v. Clayton County—but also housing, public spaces, health care, federally funded programs, education, credit, and jury service. If the Senate receives a Democratic majority after the next election, there is a strong likelihood of the Equality Act becoming law.

How does RFMA affect religious liberty?

Section 6 of RFMA provides nonprofit religious organizations with explicit religious freedom by not requiring these religious organizations to provide services for any marriage, including those of same-sex couples or interracial couples. RFMA created a division between religious groups but eventually had support from some religious groups after Democrat and Republican senators amended RFMA to include religious freedom protections in Section 6.

Getting Legal Help

If you need guidance in navigating these laws, an attorney can help. A civil rights lawyer or constitutional lawyer can explain the protections provided by the Respect for Marriage Act.