The Volokh Conspiracy

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Gay Marriage

Senators Reach Bipartisan Deal to Pass Respect for Marriage Act Protecting Right to Same-Sex Marriage

The deal includes several amendments to the original draft legislation that are unlikely to have much substantive effect.

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Earlier today, a bipartisan group of senators reached agreement on a package of amendments to the Respect for Marriage Act (RMA) that ensure it will have at least 60 votes in the Senate, enough to defeat a filibuster. As I explained in a post on the original legislation, which passed the House of Representatives in July, RMA arose from fears that the Supreme Court's reversal of Roe v. Wade in  Dobbs  presages a reversal of Obergefell v. Hodges, the 2015 ruling striking down state laws barring same-sex marriage.

Section 3 of the original RMA bars states from denying recognition to marriages  contracted in other states  "on the basis of the sex, race, ethnicity, or national origin" of the parties to the marriage. Section 4 requires the federal government to recognize—for purposes of federal law—any marriage that is "valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State." It thereby negates a key provision of the 1996 Defense of Marriage Act.

According to a summary released by Sen. Tammy Baldwin (D-Wisconsin) deal announced today includes the following modifications to the Respect for Marriage Act:

Protects all religious liberty and conscience protections available under the Constitution or Federal law, including but not limited to the Religious Freedom Restoration Act, and prevents this bill from being used to diminish or repeal any such protection.

Confirms that nonprofit religious organizations will not be required to provide any services, facilities, or goods for the solemnization or celebration of a marriage.

Guarantees that this bill may not be used to deny or alter any benefit, right, or status of an otherwise eligible person or entity including taxexempt status, tax treatment, grants, contracts, agreements, guarantees, educational funding, loans, scholarships, licenses, certifications, accreditations, claims, or defenses provided that the benefit, right, or status does not arise from a marriage.

For instance, a church, university, or other nonprofit's eligibility for taxexempt status is unrelated to marriage, so its status would not be affected by this legislation.

Makes clear that the bill does not require or authorize the federal government to recognize polygamous marriages.

Recognizes the importance of marriage, acknowledges that diverse beliefs and the people who hold them are due respect, and affirms that couples, including samesex and interracial couples, deserve the dignity, stability, and ongoing protection of marriage.

Most of these modifications don't actually alter the original bill in any meaningful way. For example, nothing in the original RMA in any way infringed on the religious liberty of churches and other private organizations. The bill only imposed obligations on state and federal governments, not private parties. Similarly, the original draft in no way threatened anyone's tax exemptions or accreditations.

The exception is the polygamy provision. As I explained in a previous post, the original RMA would indeed have required the federal government to recognize polygamous marriages if a state were to legalize them. The amendment in today's deal would prevent that. I myself have no objection to recognition of polygamous marriages. But many on both left and right feel otherwise, albeit for somewhat different reasons. In any event, this provision is of limited significance, because it is highly unlikely that any state will in fact legalize polygamy anytime soon.

If the now-revised RMA passes, it would provide significant protection for same-sex marriage. But it would not be a complete substitute for Obergefell, should the Supreme Court actually overrule the latter. I explained why in my previous post:

Our federalism objection to Section 3 of DOMA was that it sought to use federal power to push for a uniform nationwide definition of marriage…. By contrast, Section 4 of the Respect for Marriage Act does the exact opposite. It gives total  deference to states' definition of marriage. If state law says that a given relationship qualifies as a marriage, that's good enough for Uncle Sam! Call it state autonomy on steroids….

It's worth emphasizing that Section 4 avoids federalism problems in large part because it does not actually compel states to recognize same-sex marriages, or indeed any other kind of marriages. It just says that if a state does recognize them, the federal government will, as well. In that respect, it falls short of offering the degree of protection for same-sex marriage that currently exists under Obergefell.

Section 4 bars states from denying recognition to same-sex marriages contracted elsewhere. But it does not require them to allow such marriages to be formed within their own territories. Nonetheless, Section 4 would potentially allow residents of states that bar same-sex marriages to enter into them in another state, and then come home, secure in the knowledge that their home state will have to recognize their marriage.

For reasons I summarized here,  I think a reversal of Obergefell is highly unlikely. See also co-blogger Dale Carpenter's analysis of that issue. But the now near-certain enactment of the revised RMA will provide some valuable protection to same-sex couples in the event our predictions turn out to be wrong.

If Obergefell does get overruled, Section 4 could potentially be vulnerable to claims that it is beyond the scope of Congress' authority. In my view, it should be upheld against such challenges under Congress' authority under the Full Faith and Credit Clause.  See also this analysis by Steve Sanders, a leading academic expert on the Clause.