“Congress in December passed the Respect for Marriage Act, granting formal federal recognition to same-sex and interracial marriages. President Joe Biden quickly signed the bill into law.
While both types of marriages were already protected under federal law, that protection was afforded by the Supreme Court, not Congress. In the wake of Dobbs v. Jackson Women’s Health Organization, the 2022 case in which the Supreme Court overturned the federal abortion protection established by its 1973 decision in Roe v. Wade, supporters of gay marriage worried that the Court might also revisit that subject.”
“The Respect for Marriage Act does not require states to legalize same-sex marriage. Many states still have bans on the books. If the Supreme Court ever decides to overturn Obergefell v. Hodges, the 2015 decision mandating legal recognition of gay marriages, those bans could take effect again.
The new law does require states to recognize same-sex marriages legally performed in other states. While that provision may seem contrary to federalist principles, states historically have recognized marriages performed in other states with different rules (regarding minimum ages or marriages of cousins, for example). Although the courts have not yet resolved the issue, such accommodation is arguably mandatory under the Constitution’s requirement that “full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
The Respect for Marriage Act says houses of worship, religious groups, and faith-based social agencies “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” It adds that “any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.””
“Twelve Republican lawmakers crossed the aisle and voted with all the Democrats for the bill, which will enshrine federal recognition for same-sex and interracial marriages in states that have legalized it.
The Respect for Marriage Act is intended as a backstop should the Supreme Court ever decide to reconsider and overturn U.S. v. Windsor, which ruled that the federal government must recognize state-approved, same-sex marriages, and Obergefell v. Hodges, which ruled that all states and the federal government must legally recognize same-sex marriage. The Respect for Marriage Act repeals and replaces the Defense of Marriage Act, passed in 1996, which prevented the federal government from recognizing same-sex marriage.”
“The Respect for Marriage Act requires the federal government to recognize same-sex marriages performed in states where it is legal. This is obviously very important in terms of taxes and federal benefits that are tied to marriage. This is not an expansion of the federal government so much as widening the group of people who have access to existing privileges, rights, and benefits.”
“The Respect for Marriage Act does not require any state to legalize same-sex marriages. Many states still have bans on recognition on the books. If the Supreme Court ever decides to overturn Obergefell, those bans will likely become active again. The Times coverage somewhat downplays this, and some gay couples might end up being surprised at what happens if Obergefell ever goes away.
The Respect for Marriage Act does require states to recognize same-sex marriages performed legally in other states. While this feels awkward and intrusive from a federalism standpoint, do try to imagine what would happen if this were not the case. More specifically, try to imagine if this were not the case with heterosexual couples. Each state sets its own marriage rules, but each state historically recognizes legal marriage licenses from other states for heterosexual couples. Gay couples shouldn’t be any different.
The Respect for Marriage Act lets religious organizations decline to participate in gay weddings. The bill specifically provides that churches and other houses of worship, religious groups, faith-based social agencies, etc. “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.””
“LGBTQ advocates chafe at the fact that the bill does not truly codify a national right to same-sex marriage, instead repealing the Defense of Marriage Act and requiring all states to recognize marriages performed in other states should the high court reverse its earlier ruling. Supportive Republicans may not have gone further than they did, and the bill only squeaked by Tuesday, 61-36.”
“Cornyn is among a number of Republicans, including Sens. Marco Rubio (R-FL), Bill Cassidy (R-LA), and Mitt Romney (R-UT) who’ve argued that taking the bill up is superfluous, as the GOP seeks to keep the focus on other issues like inflation. While Cornyn and Rubio oppose the bill, however, Cassidy and Romney are among the Republicans who have yet to say where they stand.”
“By their reasoning, lawmakers don’t need to consider this legislation, which has already passed the House and is known as the Respect for Marriage Act, because the Supreme Court will treat the Obergefell v. Hodges decision that established this right as settled law.
In his concurrent opinion in the recent Dobbs v Jackson Women’s Health Organization decision, however, Justice Clarence Thomas said that Obergefell was among the decisions he was interested in reconsidering. Previously, multiple justices also said they believed Roe was an established precedent only to vote to overturn it in Dobbs. That’s left Democrats arguing that the marriage bill Congress is weighing is vital to enshrine these protections into federal law in case the Supreme Court reverses the precedent set in Obergefell.”
“Ultimately, the Republican position is about deflection. GOP lawmakers would be taking an unpopular position if they opposed the bill, so they are instead claiming to be opposed to legislative redundancy and overreach. Additionally, this framing helps them avoid what some GOP lawmakers see as a lose-lose scenario: Opposing the measure could prompt backlash from moderate voters, while supporting it could enrage socially conservative members of their base.”
“The bill would repeal the 1996 Defense of Marriage Act, which previously defined marriage as a legal union between a man and a woman, and it would guarantee recognition of same-sex marriages and interracial marriages under federal law. House Democrats emphasized that this vote was important to enshrine federal protections in the wake of the Supreme Court’s decision to overturn Roe v. Wade and Justice Clarence Thomas’s statement that other rights, like same-sex marriage, could be considered next.
It’s not yet clear what the fate of the legislation will be in the upper chamber, however.”
“Passage of this legislation would be historic.
It would codify the right to same-sex marriage under federal law and would prevent states from trying to nullify same-sex marriages and interracial marriages if they were valid in the places where they were performed. Ultimately, it’s both a preemptive move that House Democrats are taking if the Supreme Court were to overturn the precedent set by Obergefell v. Hodges and a way for them to get Republicans to take a stand on the issue.”