The Volokh Conspiracy
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The proposed Respect for Marriage Act (RMA) would repeal the 1996 Defense of Marriage Act (DOMA). It would also provide for both federal and interstate recognition of same-sex marriages validly entered in a state. The RMA passed the House with 47 Republican votes and awaits action in the Senate, where it will need at least ten Republican votes to survive a filibuster.
My co-blogger Ilya Somin has already addressed some of the interesting federalism aspects of the bill. I want to address here a particular religious-liberty dimension of the bill: its silence about the Religious Freedom Restoration Act (RFRA).
Members of Congress concerned about the effects of federal law on religious liberty, and about the myriad unanticipated ways legislation may burden religious exercise, have long been reassured by knowing that RFRA (42 U.S.C. 2000bb et seq.) provides a statutory floor of protection. As explained below, RMA is subject to RFRA's statutory protections for religious liberty, unlike other prominent civil rights proposals under consideration in the Senate.
RFRA provides: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless it demonstrates that application of the burden "furthers a compelling governmental interest" and is the "least restrictive means of furthering that compelling governmental interest." §2000bb–1.
RFRA applies by its terms to "all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993." §2000bb–3 (a). The proposed RMA, of course, is one such federal statute.
RFRA further specifies: "Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter." §2000bb–3(b). Nothing in RMA "explicitly excludes" application of RFRA.
By contrast, three bills now pending in Congress "explicitly exclude" RFRA. First, the Equality Act, H.R. 5 (https://www.congress.gov/bill/117th-congress/house-bill/5/text), provides in Section 1107: "The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title."
Second, both the Women's Health Protection Act of 2021 (H.R. 3755) (abortion-rights protection) (https://www.congress.gov/bill/117th-congress/house-bill/3755/text) and legislation designed to protect the use of contraceptives (H.R. 8373) (https://www.congress.gov/bill/117th-congress/house-bill/8373/text) include identical provisions explicitly excluding RFRA: "[T]his Act supersedes and applies to the law of the Federal Government and each State government . . . and neither the Federal Government nor any State government shall administer, implement, or enforce any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts with any provision of this Act, notwithstanding any other provision of Federal law, including the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.)."
The RFRA carveouts in these bills are one reason they're dead-on-arrival in the Senate. They can't get Republican support.
But RMA is different. In general, it requires state and federal governments and those "acting under color of state law" (commonly, government officials) not to refuse recognition or rights to validly married same-sex couples. It does not govern purely private actors--like employers, landlords, or vendors--whose religious scruples might be triggered by an anti-discrimination requirement.
Moreover, even if RMA were understood more expansively to cover the rare putatively private actor, the provisions of RFRA still apply to the Act. A person whose RFRA rights are violated "may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." §2000bb–1(c). Enforcement of RMA that substantially burdens a person's exercise of religion would in principle be subject to any available limitations and defenses under RFRA.
Important questions will remain about whether and exactly how RFRA would apply concretely to the enforcement of RMA in a particular instance. RFRA necessitates an accommodationist, intensely fact-bound inquiry. In particular, the upshot of applying RFRA could not sensibly be to altogether deny recognition or a marital right to which a married same-sex couple is entitled under RMA. Still, in light of other pending legislation, the omission of a RFRA carve-out from RMA is notable.
If RMA passes, it would be a milestone for a nation that once rushed to pass DOMA--emergency legislation barring recognition before a single same-sex marriage even existed. The country would now be protecting hundreds of thousands of existing same-sex marriages. It would provide an important measure of reassurance to millions of current and future spouses and their children.
It might also set a precedent for the passage of other LGBT rights legislation on a bi-partisan basis. If such legislation is to have a chance of seeing the president's desk, there is no other way.