Respect for Marriage Act

The Respect for Marriage Act repealed the 1996 Defense of Marriage Act (DOMA).[32]

DOMA barred the federal government from treating same-sex couples who were married under state law as married couples. Thus, DOMA prevented federal recognition of such marriages for purposes of Social Security benefits, tax benefits, and more.[32]

Furthermore, DOMA stated that the Full Faith and Credit Clause of the Constitution did not require states to respect the marriages of same-sex couples performed by other states.[32] The Supreme Court's decision in United States v. Windsor (2013) struck down this section of DOMA, but after Dobbs’ overturning of Roe, there was concern that Windsor could be overturned by the Supreme Court in the future.[32] RFMA replaced this portion of DOMA with a statement that the Full Faith and Credit Clause requires interstate recognition of same-sex marriages.[32]

In addition to repealing DOMA, the legislation would establish a method for the federal government to determine whether a marriage is valid for federal purposes, a legal dilemma known as choice of laws. Anticipating that federal courts and administrators would need to determine the validity for federal purposes of a marriage that is recognized in one state and not another, or in a foreign country and not by every U.S. state, it creates two tests. If celebrated in a state of the U.S. (with "state" interpreted to include territories and the District of Columbia), a marriage is valid for federal purposes if valid in that state. If celebrated elsewhere, a marriage is valid for federal purposes if it is valid in at least one U.S. state.[35]

Legal scholars disputed whether the language of the Respect for Marriage Act was an appropriate solution to the problem. Lynn Wardle wrote that it "is substantively biased to circumvent state policies that do not allow or recognize same-sex marriage" and "a violation of federalism".[36] William Baude endorsed the language of the Respect for Marriage Act. He argued that the options are to give priority to the place a marriage is celebrated or to the domicile of the married couple, that one's domicile is more easily manipulated, and that basing the choice of law on the place of celebration "promotes predictability and stability".[35]

Law scholar Ilya Somin writes that the provision requiring states to recognize same-sex marriages contracted in other states is more likely to have constitutionality issues in the court system than the provisions that apply to the definition of marriage used in federal law; he also notes that the Act contains a severability provision in case one part of the Act is found unconstitutional.[10]

Rep. Jerry Nadler introducing the Respect for Marriage Act in 2009

The 2009 bill was introduced by U.S. Representative Jerrold Nadler of New York on September 15, 2009, and garnered 120 cosponsors.[37]

The 2011 bill was introduced by U.S. Representative Jerrold Nadler of New York on March 16, 2011, and a U.S. Senate version was introduced by Dianne Feinstein of California on the same day. President Barack Obama announced his support for the bill on July 19, 2011.[38]

In September 2011, Ileana Ros-Lehtinen of Florida became the 125th cosponsor of the bill in the U.S. House of Representatives and the first Republican member of the U.S. Congress to announce support for the bill.[39] In December 2012, Richard Hanna and Charles Bass became the next Republicans to cosponsor the bill.[40][41]

Sen. Kirsten Gillibrand introducing the Respect for Marriage Act in 2011

On July 20, 2011, Sen. Patrick Leahy of Vermont chaired the first-ever congressional hearing on a proposal to repeal the Defense of Marriage Act (DOMA).[42][43] On October 25, 2011, Leahy announced that the Senate Judiciary Committee would begin debate on November 3, 2011, with a committee vote likely to happen the following week.[44] On November 3, 2011, the bill was debated in the Senate Judiciary Committee, where its passage was a foregone conclusion due to sufficient votes to pass being found in the 10 Democratic members of the committee, who are cosponsors of the bill; however, Republicans on the Committee requested the vote be delayed one week.[45] During the debate Sen. Feinstein noted that DOMA denies same-sex couples more than 1,100 federal rights and benefits that are provided to all other members of that class, legally married couples, including rights to Social Security spousal benefits, protection from estate taxes when a spouse passes away, and the ability to file taxes jointly and claim certain deductions.[46] The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor.[47]

The bill's sponsors decided not to reintroduce the Respect for Marriage Act in 2013 until the United States Supreme Court issued a decision in United States v. Windsor.[48] They reintroduced it on June 26, the same day the Court ruled in that case that Section 3 of the Defense of Marriage Act was unconstitutional.[49]

The aforementioned lawmakers Representative Jerrold Nadler of New York and Senator Dianne Feinstein of California reintroduced the legislation on the first day of the 114th Congress. Nadler remarked, "We must finish the job begun by the Supreme Court". In terms of co-sponsors, the proposal soon accrued 77 co-sponsors in the House and 41 in the Senate. The news received a warm welcome from LGBT rights groups such as the American Military Partner Association, which stated that Congressional action had to take place in order to assist same-sex military couples seeking veterans benefits.[5]

Section 2 of DOMA, the last substantive provision of that act remaining viable after United States v. Windsor, was rendered obsolete in Obergefell v. Hodges in June 2015.

The Supreme Court ruling in Dobbs v. Jackson Women's Health Organization in June 2022 overturned Roe v. Wade and Planned Parenthood v. Casey. In his concurrence, Justice Clarence Thomas postulated that the court should revisit other past cases which granted rights based on substantive due process, including the right of same-sex marriages from Obergefell, leading to concerns from lawmakers.[50][51]

In July 2022, the House Judiciary Committee Chairman Jerrold Nadler (D-NY), Senator Dianne Feinstein (D-CA), Congressional LGBTQ+ Equality Caucus Chairman David Cicilline (D-RI), Senator Tammy Baldwin (D-WI) and Senator Susan Collins (R-ME) announced the re-introduction of the Respect for Marriage Act, which was revised to include protections for interracial marriages to codify Loving v. Virginia.[52] The Act passed the House (267–157) on July 19, 2022, with 47 Republicans joining all Democrats in voting in the affirmative.[53]

November 29 Senate vote by state

  Two yeas

  Yea and not voting

  Yea and Nay

  Two Nays

  Nay and not voting

The Senate initially planned to vote on the bill before the 2022 midterm elections. However, because it was unclear whether it would receive enough votes to end debate, the consideration of the bill was delayed by Majority Leader Chuck Schumer.[54] On November 14, 2022, a group of bipartisan senators, including Rob Portman (R-OH), Kyrsten Sinema (D-AZ), Thom Tillis (R-NC), Tammy Baldwin (D-WI), and Susan Collins (R-ME) announced they had reached an amendment compromise to include language for religious protections and clarify that the bill did not legalize polygamous marriage.[55] The amendment specifies that nonprofit religious organizations will not be required to provide services for the solemnization or celebration of a marriage.[56] Shortly after, Senate Majority Leader Chuck Schumer announced that he would bring the modified bill to the Senate floor.[57]

On November 16, 2022, the Senate invoked cloture on the motion to proceed (62–37) to the amended bill.[58] All 50 Democratic senators and 12 Republicans (Roy Blunt, Richard Burr, Shelley Moore Capito, Susan Collins, Joni Ernst, Cynthia Lummis, Lisa Murkowski, Rob Portman, Mitt Romney, Dan Sullivan, Thom Tillis, and Todd Young) voted in favor of advancing the bill.[56]

On November 29, 2022, the Senate voted 61–36 to pass the bill.[15] Voting in favor of the bill were 49 Democrats and the same 12 Republicans who had voted to advance it. Two Republicans (Ben Sasse and Patrick Toomey) and one Democrat (Raphael Warnock, who co-sponsored the bill) did not vote.[59]

On December 8, 2022, the House passed (258–169–1) the Senate's version of the Act, with 39 Republicans joining all Democrats in voting in the affirmative.[60]

President Biden signing the bill into law at the White House on December 13, 2022

On December 13, 2022, President Biden signed the Respect for Marriage Act into law in a ceremony that was held on the White House lawn.[2] Pelosi, Schumer, Harris, and Biden all spoke at the event, which also featured performances by the Gay Men's Chorus of Washington, D.C, as well as musicians Sam Smith and Cyndi Lauper.[2] Gina Nortonsmith and Heidi Nortonsmith, the lesbian couple who was one of seven same-sex couples who sued the state of Massachusetts for same-sex marriage rights in the 2003 Goodridge v. Department of Public Health case, were among those who spoke at the event as well.[2]

A September 2022 Grinnell College National Poll found that 74% of Americans believe same-sex marriage should be a guaranteed right while 13% disagreed and 13% were uncertain.[63][64]

Gallup found that nationwide public support for marriage equality for same-sex couples reached 50% in May 2011,[65] 60% in May 2015,[66] and 70% in May 2021.[19]

The Pew Research Center found 40% in 2010, 50% in 2013, and 61% in 2019.[67] By 2016, 83% of Americans aged 18–29 supported same-sex marriage.[68] In 2018, 60% of Americans said they would not mind if their child married someone of the same gender.[69]

Annual polling conducted by Gallup each May in 2017, 2018, 2019 and 2020 has found support for same-sex marriage stable, with two-thirds of Americans indicating that same-sex marriage should be recognized as valid under law (a range of 63% to 67% was recorded).[70][71] In 2020, 67% of respondents stated that same-sex marriage should be legally recognized as valid under the law.[72]

As of 2021, there is majority support for same-sex marriage in 47 states, ranging from 50% in South Carolina to 85% in Massachusetts. There is plurality support in Alabama, with 49% supporting and 47% opposing. Only Mississippi and Arkansas have majority opposition to same-sex marriage; in Mississippi, 55% oppose and 44% support, while in Arkansas, 52% oppose and 47% support same-sex marriage.[62]

Gallup found that nationwide public support for interracial marriage rose from around 4% in 1958, more than 50% in 1994,[73] to 94% in 2021.[18]

Interracial marriage features prominently in the Respect for Marriage Act. Interracial marriage was first legalized through the landmark supreme court case Loving v Virginia in 1967, in which the Warren court established that the laws prohibiting interracial marriage were in violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment of the Constitution.[74] According to Gallup polls of United States public opinion, approval for interracial marriage has increased from 4% in 1958 to 94% in 2021 and the highest approval rating of 98% is from Americans between the ages of 18 and 29.[75]

The issue of interracial marriage was not raised in the original Defense of Marriage Act (DOMA) that would lead to the passage of the Respect for Marriage Act. The new language of the Respect of Marriage Act requires states to approve and acknowledge out-of-state marriage licenses issued to interracial couples.

Despite overwhelming public support for interracial marriage, the June 2022 overturn of Roe v. Wade and Planned Parenthood v. Casey raised additional concerns that interracial marriage was being threatened by the Supreme Court. Loving v. Virginia, Obergefell v. Hodges, and the recently overturned Roe v. Wade were decided under the due process clause of the Fourteenth Amendment and this is what many believe to be the cause to include interracial marriage as protected under the Respect for Marriage Act.[76]

The Respect for Marriage Act passed with a vote of 258 Yeas–169 Nays (1 present and 4 not voting [77]) on December 8, 2022, and was signed into law by President Biden on December 13, 2022.[78] A total of 39 Republicans joined all 219 Democrats in voting to pass the bill;[79] Adam Kinzinger intended to vote yes but was absent from the final vote.[80] Thus, the bill is considered to be a bipartisan vote – the most pro-LGBTQ vote in Congressional history.[81]

The main vocalized objection to Republican opposition to the bill is its possible implications of limits to religious freedom. Florida Republican Mario Díaz-Balart was quoted on his opinion of the bill: “My record shows that I am a long-standing advocate against discrimination of all types. I, however, cannot support any effort that undermines religious liberties by failing to provide legitimate safeguards for Faith-Based organizations that object based on their deeply-held religious beliefs.” Representative Díaz-Balart voted in opposition of the bill. Florida Republican, Representative María Elvira Salazar joined Díaz-Balart in opposition. She stated “I voted for the first version of the bill because I believe in human dignity and respect for all individuals. However, we cannot pass laws that advance one interest and bypass long-held legal protections for others”.[82]

In order for the bill to have been successful as a bipartisan vote, the final bill included an amendment to ease some Republicans’ concerns about impacts to religious liberty.[82] Wisconsin Republican Mike Gallagher voted against the bill during the first house vote, but supported the bill following the senate's amendments, citing the religious liberty amendment and clarification that the bill would not authorize federal recognition of polygamy.[83]

President Biden signed the Respect for Marriage Act into law on December 13, 2022, and he and Vice President Harris gave their opinion of the Act in a speech prior to signing the bill. The speeches from Vice President Harris and President Biden highlighted other parts of the history of same-sex marriage, such as the movement against Proposition 8. The President also referenced Mildred and Richard Loving, and told the story of their Supreme Court case, as well as the case of Edie Windsor. The President also mentioned specific members of the Senate, namely Senator Tammy Baldwin, Susan Collins, Chuck Schumer, Senator Portman, Senator Sinema, Senator Tillis, Senator Feinstein, and Senator Booker, and Speaker of the House Nancy Pelosi, as well as Jerry Nadler. [79]

The final version of the bill divided American religious groups opposed to same-sex marriage.[20] It was supported by some as a suitable compromise between the rights of LGBT couples and religious liberty,[21] a position that was taken by the Church of Jesus Christ of Latter-day Saints, but was prominently opposed by the United States Conference of Catholic Bishops and the Southern Baptist Convention due to their views on sexuality.[20]

On November 15, 2022, the Church of Jesus Christ of Latter-day Saints released a statement regarding the RFMA, calling a bill that included "religious freedom protections while ... preserving the rights of ... LGBTQ [people] ... the way forward",[84] while stating that church doctrine would remain unchanged in not recognizing same-sex marriages. The Church has supported some legislation in the past that supported LGBT rights, as long as they also included protections for religious freedom.[85][86]

On December 1, 2022, the United States Conference of Catholic Bishops stated that "This bill fails to include clear, comprehensive, and affirmative conscience protections for religious organizations and individuals who uphold the sanctity of traditional marriage that are needed."[87]

Baptist Joint Committee leaders in support of the bill criticized opponents for stoking unreasonable fear that civil rights for others would mean less religious rights for themselves. They noted the bill deals with civil marriage and has no impact on the institution of religious rites of marriage.[23]

Other denominations supported the measure. It was supported by over 40 other faith organizations in a joint letter to the Senate,[88][89] including the Episcopal Church, the Evangelical Lutheran Church in America, Hindus for Human Rights, the Interfaith Alliance, Jewish Women International, Muslims for Progressive Values, the National Council of Jewish Women, the Presbyterian Church (USA), the Reconstructionist Rabbinical Association, the Religious Action Center of Reform Judaism, the Sikh Coalition, the Union for Reform Judaism, the Unitarian Universalist Association, and the United Church of Christ.[24] Most of those organizations who signed the letter allow for same-sex weddings in their facilities and affirm LGBT parishioners.

LGBTQ rights activists praised the Respect for Marriage Act for codifying into law some of the protections of Obergefell, but claim that the Act still falls short of everything that Obergefell protected.[90] Activists and scholars highlight some important limitations of the bill, such as the Act not requiring nonprofit religious organizations “to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”[91] However, activists do acknowledge that the bipartisan support of the bill is noteworthy,[92] and that it shows a significant change in public opinion that is reflected in the actions of government representatives.[90]