The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For those of us over forty, the 1996 Defense of Marriage Act (DOMA), which preemptively barred federal recognition and benefits for married gay couples, seemed here to stay. It was adopted by nearly unanimous congressional majorities and signed by Bill Clinton in the heat of a presidential election year, even though there would be no such marriages for eight years. But more importantly it reflected the views of at least two-thirds of all Americans at the time. Even after the Supreme Court's decision in Obergefell, repealing DOMA was very low on the list of priorities for most LGBT-rights groups and at any rate surely could not get enough support to end a filibuster by Republicans in the Senate.
But today the Senate voted to close debate on the Respect for Marriage Act (RMA) (text here), repealing DOMA and requiring states to recognize same-sex marriages performed in other states. I previously discussed the substantive provisions of the RMA here (my co-blogger Ilya recently discussed them here), and won't elaborate further. The Senate must still vote to approve the bill. The amended version will then have to pass in the House, where a large majority (including 47 Republicans) already backed it.
The last time I wrote about RMA, I noted that the bill did not exclude the protection of individual religious freedom under the 1993 Religious Freedom Restoration Act (RFRA). That was notable because the centerpiece LGBT-rights legislation pending in Congress, the Equality Act (which is comatose), specifically excludes RFRA's religious protections.
Since July, a bipartisan group of Senators (led by Tammy Baldwin (D-WI) and Susan Collins (R-ME)) not only preserved RFRA, but worked with others to craft additional language assuaging the concerns of churches and religious charitable organizations that the bill might require them to provide services and goods to married gay couples. It also now provides that such groups won't lose their tax-exempt status as a result of the new law. It was always very unlikely that the bill would be interpreted to have such effects because its provisions apply only to "those acting under color of state law" (generally, government officials).
But as anyone who's worked on legislation can tell you, the other side doesn't always trust that courts will interpret language in the way it should be interpreted. (Sometimes, they're right about that.) Their fears may seem exaggerated but you often learn they are genuine, and if you really don't have the intention of producing or risking the result the other side fears (e.g., losing tax exemptions, requiring goods and services), and if you can address them with minimal harm to the substance of the bill, then it's both right and maybe politically necessary to do so. That's the spirit in which the Senators and their staffs negotiated the terms of a bill that will give a measure of reassurance in federal law to hundreds of thousands of married gay couples and to the millions of children gay people are raising.
This is an important step by many theologically conservative groups, which either supported the bill (like the LDS Church) or at least didn't object to it (like the Seventh-Day Adventists and the Orthodox Jewish Union). Prominent religious-liberty scholars like Doug Laycock, Tom Berg, and Robin Wilson supported it. You can also add the Council for Christian Colleges and Universities and the National Association of Evangelicals (see here). Of course, some advocacy groups will continue to oppose any legal recognition of same-sex marriage, regardless of religious protections (see here and here).
Perhaps just as importantly, this is a potentially important step for Democrats–all of whom voted for the bill. For the first time in the context of LGBT-rights legislation, progressive Democrats in Congress have voted: (1) to allow RFRA protections for people of faith (that's the effect of not explicitly carving out RFRA, as I explained in July); (2) to codify religious-liberty protections for social service organizations in providing goods and services; (3) to protect religious groups from losing their tax exemptions; and (4) to make the following finding, cribbing from Obergefell:
Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.
Can that same spirit of mutual respect and accomodation animate future discussions of LGBT policy issues?
It's going to be a lot tougher to pass comprehensive anti-discrimination legislation like the Equality Act or the Fairness for All Act. There are much more significant trade-offs involved for both Democrats and Republicans, and for both LGBT-rights supporters and religious conservatives, in bills that address housing, public accommodations, and federal funding. But even if the RMA isn't an unshakeable precedent, it's at least an important first step.
And it's the end of the road for a law that was preemptively cruel and reflects a view about "defending" marriage that 70% of Americans no longer support.
CORRECTION: I have been informed that my original post incorrectly stated the Seventh-Day Adventist Church supports the RMA. In fact, the Seventh-Day Adventists support the religious liberty provisions in the RMA but neither support nor oppose the RMA as a whole. I have edited the post to reflect the correction.)