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What the Respect for Marriage Act Actually Does (and Doesn't Do)

The bill President Joe Biden signed today does not codify marriage equality into federal law, but it offers some strong protections.

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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.
Photo: Anna Moneymaker (Getty Images)

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 (The court overturned the law in the 2013 case U.S. v. Windsor, but it was never repealed and it could be revived again, like state bans on abortion after Roe v. Wade fell.)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.

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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.

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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.

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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.

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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.

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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.

Update, 12/13/22, 4:30pm: This story has been updated to reflect that Biden signed the bill into law.