The Respect for Marriage Act

The Respect for Marriage Act (RMA) passed in the U.S. Senate on November 16, 2022, and while much of the surrounding media coverage has hailed the bipartisan passage of this bill as a huge victory for the LGBTQ+ community, others - including the top queer news outlets in America - have encouraged their audiences to read the fine print.

According to Vox politics reporter Li Zhou, enacting this legislation is Congress’ way of “establishing a critical safeguard if the Supreme Court were to overturn its 2015 decision guaranteeing this right [to marriage].” The Respect for Marriage Act requires states and the federal government to recognize same-sex and interracial marriages across the country, so long as the marriage was legal when and where the participants entered the contract. Additionally, RMA “[establishes] that ‘a place of celebration’ is the standard of recognition for federal benefits of a marriage,” according to Human Rights Campaign (HRC), the largest LGBTQ+ civil right organization in America. 

Senator Tammy Baldwin, the nation’s first lesbian Senator, explains that although the implications of its passage are “humble,” the Respect for Marriage Act serves an important role in protecting the rights of same-sex and interracial couples that have already married. Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health Organization, the decision which overturned Roe v. Wade, has put the future of marriage equality under mass speculation. Thomas laid out a vision which, according to the New York Times, argues that “the same rationale that the Supreme Court used to declare there was no right to abortion … should also be used to overturn cases establishing rights to contraception, same-sex consensual relations and same-sex marriage.” 

In Roe, the court had found that abortion was a right protected by the due process clause of the 14th Amendment of the Constitution. The Dobbs decision rejected that underlying logic. Since Lawrence v. Texas (2003) and Obergefell v. Hodges (2015), two of the most significant marriage equality cases, are also based on this line of reasoning, the Supreme Court can now use the precedent they have set in Dobbs to overturn these cases as unconstitutional. 

While the Respect for Marriage Act cannot guarantee same-sex and interracial marriages across the country, it guarantees that the marriages from one state will be recognized in all 49 other states as well as by the federal government. Without this legislation, same-sex marriages would not be nationally recognized and protected. Instead, it would be up to the states to individually determine the criteria for a marriage. Congress therefore intends to prevent a worst-case scenario for married couples in which they are unable file legitimate paperwork (e.g. for taxes) or their marriage is nullified altogether.

In the meantime, several other cases concerning the LGBTQ+ community are under judicial review, including one that “pits two cherished constitutional principles against one another,” according to NPR. In 303 Creative LLC v. Elenis, business owner Lorie Smith wants to expand her graphic design firm to include wedding websites but she does not want to design for same-sex weddings, based on her religious beliefs. On December 5, her team argued that Colorado’s Anti-Discrimination Act, which does not allow public businesses to refuse to provide goods or services on a discriminatory basis, violates her constitutional right as an artist to free speech and expression. The state says that while any business has the right to create whatever they want (i.e. to sell any message), the question in this case is of how they conduct their business - whether or not they will sell to whoever wishes to purchase it. Now, the Supreme Court will weigh freedom of speech against the right to equal protection.

Similarly, the 2023 decision for Jack Daniel's Properties v. VIP Products LLC, will have implications for whether or not commercially distributed products qualify as artwork and can be protected as such under the First Amendment. The question of whether or not a business is responsible for a message distributed via their product emerges again in Twitter, Inc. v. Taamneh, this time through the lens of aiding-and-abetting liability under the Anti-Terrorism Act. 

But at the heart of the issue remains marriage law: the primary function of the Respect for Marriage Act is repealing the 1996 Defense of Marriage Act (DOMA) which “[defended] the institution of traditional heterosexual marriage.” Although it was ruled unconstitutional by the Supreme Court in United States v. Windsor (2013), DOMA technically remains law, and if the court was to overturn Obergefell, in which the affirming side claimed that the Constitution guarantees same-sex marriage rights, the national law would automatically revert to defining marriage as “exclusively … between persons of the opposite sex.” 

Although American courts have always considered marriage to be a civil right, disputes over what constitutes a marriage have enabled states to prevent child marriages and exploitation under the name of polyamory, but it has also allowed them to to deny marriages to queer and interracial couples, equal protection therefore comes in multiple forms: access to marriage (the right to marry) as well as protection from marriage (the right not to marry). While some argue that divorce laws protect the right not to marry, others argue that divorce law doesn’t adequately account for coercive marriages, especially because marriage involves both privacy and property rights. This dispute is further complicated by the issue of state versus federal jurisdiction - states define marriage and its benefits while the federal government maintains ultimate authority to weigh in on matters in the Constitution (including privacy and property) through the Supreme Court.

For others, the Respect for Marriage Act is just another way for legislators and the President to use queer bodies for their own political aims. From Obama’s rewriting of history, famously claiming to have “lied about opposing gay marriage” to maintain political capital after the Supreme Court decision to protect same-sex marriages, to Republican’s back and forth on gender issues, LGBTQ+ people accross the world are tired of the political manipulation of homophobia and transphobia, especially as state legislatures continue to advance a record number of anti-LGBTQ+ bills that “target transgender people, limit local protections, and allow the use of religion to discriminate,” according to the American Civil Liberties Union. 

At the same time, analysts raise doubts about the likelihood of the RMA’s passage if it weren’t for both party’s current need to appeal to a younger voter base. There is a tension between what lawmakers are perceived to believe and what the impacts of their actions may be. But at the end of the day, even major LGBTQ+ rights organizations are celebrating the passage of the Respect for Marriage Act.

“Today’s vote in the House of Representatives sends a clear message: love is winning,” says HRC President Kelley Robinson in a statement following the final passage of the bill. “At a time when the LGBTQ+ community continues to face ongoing attacks – from deadly violence to legislative assaults on our rights – today’s vote is a clear victory for this country’s 568,000 same-sex married couples, including me.”

by ANANYA KATYAL