The Respect for Marriage Act passed the Senate Tuesday night by a vote of 61–36. 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.
There has been quite a bit of exaggeration about what the bill actually does in the run-up to Tuesday's vote, particularly by social conservatives who have a very long history of opposing same-sex marriage. The Heritage Foundation describes the bill as "radical" and, uh, tweeted out a frowny-face emoji in response to the vote. A reminder here that a majority of Americans, including Republicans, support legal recognition of gay marriage.
In a post at The Daily Signal, Roger Severino, Heritage Foundation's vice president of domestic policy, opined, "No American who believes in marriage as the union of one man and one woman should be persecuted by the state or radical activists for their sincerely held convictions."
The bill doesn't actually authorize any of that, but the Foundation is highlighting concerns that down the line, the IRS or federal government will use religious opposition to same-sex marriage to attack the tax-exempt status of religious organizations. Sen. Mike Lee (R–Utah) attempted to introduce an amendment that would strengthen religious freedom protections in the bill but was rejected.
Conservatives aren't the only ones whose representations of the Respect for Marriage Act aren't quite getting the big picture. Coverage of the Respect for Marriage Act in The New York Times, for example, downplays the respect for state powers in the bill—it does not require states to legalize gay marriage recognition. To be fair, here, conservatives like Sen. Tom Cotton (R–Ark.) also seem to think that the bill is forcing same-sex marriage on states.
So a quick refresher on what the bill actually does and does not do:
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. If senators like Cotton think the federal government is too involved with a state issue, they can certainly attempt to start rolling back the many, many, many federal regulations and policies that are connected to marital status. But I won't be holding my breath.
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."
The Respect for Marriage Act does not resolve conflict over whether religious organizations may be required under the law to recognize same-sex marriages in certain circumstances. This is what Lee is attempting to address with his failed amendment. Can a church-connected foster agency refuse to place children with same-sex couples? Does a religious school with a position against same-sex marriage have to employ teachers in these marriages? The bill is silent on this conflict entirely. But that's also the current status quo, where the matter is somewhat unsettled. A recent Supreme Court decision in favor of a Catholic foster program failed to address the underlying question. The reason this is not addressed by the bill is because Republicans and Democrats are on opposite sides here and the amendment would certainly stop its passage. (A cynic might wonder if this is the intent in trying to push it into the bill.)
The Respect for Marriage Act does not resolve conflict over whether private businesses can be forced by law to provide goods and services for gay weddings. The bill is completely silent over state-level public accommodation laws and wedding services like wedding cakes, invitations, floral arrangements, and the like. The reason the bill is silent here is most certainly the same as above—taking a stand in either direction would kill the bill due to currently irreconcilable political differences. On Monday, the Supreme Court will be hearing arguments in 303 Creative v. Elenis, a case about whether a web designer and host can be forced to provide her services to create gay wedding pages despite her religious opposition to recognition.
And to be clear here, the Respect of Marriage Act is how same-sex marriage should be legalized, rather than just leaving it to the Supreme Court to make the decision. We should look askance at lawmakers like Lee who argue that Congress doesn't need to act here simply because there's no current case being pushed before the Supreme Court to undermine same-sex marriage. This is Congress' job: Having laws that specify the boundaries of federal marriage recognition is something we should expect lawmakers, not judges, to determine.
Now that the bill has passed the Senate, it will have to go back to the House for another vote, as part of the compromise with Senate Republicans which involved adding a section specifying that the Respect for Marriage Act doesn't allow for recognition of polygamous marriage. It's expected to sail back through the House and get President Joe Biden's signature before the lame-duck session ends.