The Respect for Marriage Act (RFMA; ) is a landmark federal statute passed by the 117th United States Congress in 2022 and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. government and all U.S. states and territories (though not tribes) to recognize the validity of same-sex and interracial civil marriages in the United States, and protects religious liberty. Its first version in 2009 was supported by former Republican U.S. representative Bob Barr, the original sponsor of DOMA, and former president Bill Clinton, who signed DOMA in 1996. Iterations of the proposal were put forth in the , and Congresses.
On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment requires all U.S. states to recognize same-sex marriages. This decision rendered the last remaining provision of DOMA unenforceable and made same-sex marriage federal law. The future of same-sex marriage in the United States was put back into question in 2022, when a concurring opinion by Justice Clarence Thomas in Dobbs v. Jackson Women's Health Organization argued the Court "should reconsider" the Obergefell decision. RFMA officially repealed DOMA and requires the federal government to recognize same-sex and interracial marriages, codifying parts of Obergefell, the 2013 ruling in United States v. Windsor, and the 1967 ruling in Loving v. Virginia. In addition, it compels all U.S. states and territories to recognize the validity of same-sex and interracial marriages if performed in a jurisdiction where such marriages are legally performed; this extends the recognition of same-sex marriages to American Samoa, the remaining U.S. territory to refuse to perform or recognize same-sex marriages.
In July 2022, RFMA was reintroduced to Congress, with revisions including protections for interracial marriages. The act passed the House in a bipartisan vote on July 19, 2022. Senator Tammy Baldwin of Wisconsin announced on November 14, 2022, that a bipartisan deal had been struck, and that they expected the legislation to reach 60 votes to break the filibuster. A motion of cloture passed 62–37 in the Senate on November 16. On November 29, the Senate passed it by a 61–36 vote, with a large majority of Senate nays originating from Republican senators in the Southern United States. On December 8, the House agreed to the Senate amendment by a 258–169 vote, with one member voting present (abstention). 39 Republicans voted yea. President Biden signed the bill into law on December 13, 2022. Public opinion polls of same-sex marriage in the United States indicate a strong majority of Americans are in favor; Public opinion polls of interracial marriage is supported almost universally.
The final version of the bill divided American religious groups morally opposed to same-sex marriage; it was supported by some as a suitable compromise between the rights of LGBTQ couples and religious liberty, a position that was taken by the Church of Jesus Christ of Latter-day Saints, but was prominently opposed by the U.S. Conference of Catholic Bishops and the Southern Baptist Convention due to their views on sexual ethics. Other religious groups that supported the bill include the Episcopal Church, the Evangelical Lutheran Church in America, the Union for Reform Judaism, the United Church of Christ, the Unitarian Universalist Association, and the Presbyterian Church (USA).
Background
Prior to the Supreme Court's 1967 ruling in Loving, anti-miscegenation laws were still in force in 16 states, all prohibiting interracial marriage. Until 1996, the federal government of the United States customarily recognized marriages conducted legally in any state for the purpose of federal legislation. Following an unsuccessful lawsuit aimed at legalizing same-sex marriage in Hawaii, the United States Congress passed the Defense of Marriage Act, one section of which forbids the federal government from recognizing same-sex marriages. The Supreme Court ruled this section unconstitutional in the 2013 case United States v. Windsor.
In June 2022, the Court ruled in Dobbs v. Jackson Women's Health Organization that the Constitution does not confer the right to an abortion, overturning the 50-year-old precedent of Roe v. Wade. Writing for the majority, Samuel Alito stated that fears that the same arguments that overturned Roe might also touch upon "matters such as intimate sexual relations, contraception, and marriage" were "unfounded". However, in a concurring opinion, Clarence Thomas argued that the Court should go further in future cases, reconsidering other past Supreme Court decisions that granted rights based on substantive due process, such as Griswold v. Connecticut (the right to contraception), Obergefell v. Hodges (the right to same-sex marriage), and Lawrence v. Texas (the right to engage in private sexual acts).
In response, in July 2022 the House passed bills aimed to protect rights that Thomas had mentioned, with the Respect for Marriage Act specifically ensuring that the right to same-sex and interracial marriages would remain part of federal statute law even if the Court ruled at some future date that they were not constitutionally guaranteed.
Repealing the 1996 Defense of Marriage Act
The Respect for Marriage Act repealed the 1996 Defense of Marriage Act (DOMA).
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.
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. 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. RFMA replaced this portion of DOMA with a statement that the Full Faith and Credit Clause requires interstate recognition of same-sex marriages.
Content In addition to requiring all states to recognize interracial or same-sex marriages performed in another domestic or foreign jurisdiction, the law also requires all territories and possessions of the United States to recognize marriages performed elsewhere. Prior to enactment of the act, American Samoa was the only U.S. territory which neither performed nor recognized same-sex marriages, even if performed legally in another jurisdiction of the United States or elsewhere. It does not apply to federally recognized Native American nations, which are free to determine their own policy on performance and recognition.
Marriage validity In addition to repealing the DOMA, the legislation establishes 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.
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". 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".
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.
Legislative progress
111th Congress (2009–2011)
The 2009 bill was introduced by U.S. representative Jerrold Nadler of New York on September 15, 2009, and garnered 120 cosponsors.
112th Congress (2011–2013) 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.
House 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. In December 2012, Richard Hanna and Charles Bass became the next Republicans to cosponsor the bill.
Senate
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). 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. 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. 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. The Senate Judiciary Committee voted 10–8 in favor of advancing the bill to the Senate floor.
113th Congress (2013–2015) 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. 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.
114th Congress (2015–2017) 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.
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.
117th Congress (2021–2023)