Congress Formally Grants Federal Recognition to Gay Marriage

While same-sex marriage was already protected under federal law, that protection was afforded by the Supreme Court, not Congress.

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.

Hence the Respect for Marriage Act, which included compromises aimed at attracting enough Republican votes to avoid a filibuster in the Senate. The law requires the federal government to recognize same-sex marriages performed in states where they are legal. That ensures gay spouses will continue to enjoy the privileges, rights, and benefits federal law has long afforded straight spouses, such as the marital tax deduction, joint filing, and Social Security benefits.

Sen. Tom Cotton (R–Ark.) said he opposed the bill because it interfered with an issue that the Constitution leaves to the states. Yet many federally recognized privileges are contingent on state marriage licenses, and there is no sign that Congress is inclined to scale back those benefits.

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."

The law does not address the issue of whether religious organizations can be required to recognize same-sex marriages in certain circumstances. Can a church-connected foster agency refuse to place children with same-sex couples? Does a religious school with a position against gay marriage have to employ teachers with same-sex spouses?

The law is silent on such questions. Republicans and Democrats are largely on opposite sides here, and attempting to resolve this dispute legislatively would have doomed the bill.

Many states have public accommodation laws that require wedding contractors to prepare wedding cakes, invitations, or floral arrangements for gay couples. The Respect for Marriage Act does not address that issue either, which likewise probably would have made it impossible to pass the bill.

Days after the Senate passed the Respect for Marriage Act, the Supreme Court heard arguments in 303 Creative LLC v. Elenis, which poses the question of whether a website designer with moral objections to same-sex marriage has a First Amendment right to refrain from producing websites for gay weddings. A ruling is expected in the spring.