The Respect for Marriage Act is Signed

On Tuesday, December 13, 2022, U.S. President Biden signed a landmark legislation that will protect marriages. The Respect for Marriage Act grants federal protection to same-sex and interracial couples, requiring that people be considered married in any state as long as the marriage is valid in the state where it was performed.

The Respect for Marriage Act became a legislative priority after the U. S. Supreme Court in June ended the constitutional right to abortion in Dobbs v. Jackson decision. The right to an abortion was held in Roe v. Wade and called the stability of other landmark civil liberties cases into question after nearly 50 years.

As extremely conservative member of the Supreme Court, Justice Clarence Thomas said the court should also reexamine cases that set precedent on LGBT rights – the 2015 Supreme Court case Obergefell v. Hodges, which found that same-sex marriage is constitutionally protected.

If the Supreme Court were to overturn Obergefell, the legality of same-sex marriages would revert to state law and the majority of states in the U.S. would prohibit it. The Respect for Marriage Act wouldn't change that, but it requires all states to recognize same-sex marriages performed in other states and federally recognizes these marriages.

The Respect for Marriage Act unexpectedly gained Republican support and passed the Senate on Nov. 29 after being amended to ensure that nonprofit religious groups aren't required to help perform same-sex marriages. It also repeals the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages and allowed states to refuse to recognize same-sex marriages performed elsewhere.

The specific impact of the Respect for Marriage Act on same-sex couples and their families in a post-Obergefell world would vary based on state law.

Justice Clarence Thomas specifically called for the Court to reconsider Obergefell in his concurring Dobbs opinion because it rested in part on the same legal basis as Roe and its due process, which restricts government infringement upon fundamental individual rights even if they are unenumerated, such as birth control and interracial marriage.

"I want to be really clear that there would be no reason to reverse Obergefell and that it was correctly decided under existing precedents," including the Equal Protection Clause of the Fourteenth Amendment, says Mary Bonauto, a senior attorney at GLBTQ Legal Advocates and Defenders who has argued landmark civil rights cases, including Obergefell. "But if it were, there is now a backstop in place requiring states to respect these marriages" and guaranteeing them federal recognition.

Jon Davidson, senior staff attorney for the American Civil Liberties Union's LGBTQ & HIV Project and co-counsel on Obergefell, said the law is an "important advance" that will "make a lot of same-sex couples and their families feel more secure."

However, Davidson pointed out that the Respect for Marriage Act doesn't address the ongoing violence against the LGBTQ community, from the Colorado Springs shooting to the high murder rate among transgender women of color, nor the wave of anti-transgender legislation in state legislatures.

"We're seeing an all-out attack on the LGBTQ community, and this bill does nothing about any of that," Davidson says. "It simply ensures that if a same-sex couple gets married, their marriage will be treated the same as other marriages."

Advocates have been pushing for the Equality Act, a bill that would ban discrimination on the basis of sex, sexual orientation and gender identity and expand the definition of public accommodations. It passed the House in February 2021 but stalled in the Senate due to Republican opposition, in part because of tight restrictions on religious liberty exemptions.

The Respect for Marriage Act's ability to garner bipartisan support was the result of the religious protections added by amendment.

Bonauto of the GLBTQ Legal Advocates and Defenders called the passage of the Respect for Marriage Act important and exciting even though the lack of Congressional support for non-discrimination legislation is bittersweet. "There's a lot to do, but in the end, I think this was a valuable thing to do," Bonauto says.