How the Respect for Marriage Act won't protect same-sex marriage

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The surprising ways the Respect for Marriage Act would — and wouldn’t — protect same-sex marriage

The Senate has been fervently debating a same-sex marriage bill amid concerns that the Supreme Court could overturn the 2015 ruling that granted a nationwide right to same-sex marriage, Obergefell v. Hodges.

The bill, called the Respect for Marriage Act, is teetering on becoming law: Democrats in the House introduced it over the summer after the Supreme Court struck down Roe v. Wade, a decision that threw other court decisions based on similar legal logic — including Obergefell — into question. But the bill unexpectedly passed the House with bipartisan support, raising the possibility that the Senate could pass it too. In recent weeks, a bipartisan group of senators has been scrambling to tailor the bill to secure support from 10 Republicans, enough to avoid a filibuster in the Senate.

On Thursday, Sen. Tammy Baldwin (D-Wis.), the bill’s chief sponsor, said the Senate would wait until after the election to vote on the measure.

The Respect for Marriage Act is a more permissive law than the precedent set by Obergefell. It wouldn’t require states to license same-sex marriages, which Obergefell does. It would mandate they recognize same-sex marriages performed in other states. The Respect for Marriage Act also doesn’t explicitly regulate businesses, which could help quell concern from Republicans concerned about religious liberties, experts told Grid.

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“It’s designed not to mandate a given state marry anyone they don’t want to marry. Instead, if you found some place to get married, everyone has to treat you as married,” said Paul Smith, a lawyer who argued a 2003 Supreme Court case that paved the way for the Obergefell decision. “That’s less of an intrusion on the sovereignty of states — it doesn’t run the risk of commandeering the marriage apparatus of the state and telling them to do their job.”

How the new bill would repeal an old law

The Respect for Marriage Act would repeal the Defense of Marriage Act that was passed in 1996 and signed by President Bill Clinton. DOMA defined marriage on the federal level as being between one man and one woman. The new bill would instead recognize same-sex marriages federally and mandate that states do the same no matter which state the marriages are performed in.

While Obergefell v. Hodges requires all states to license same-sex marriage, the Respect for Marriage Act wouldn’t require a state to license them — but they would have to recognize a marriage that’s performed elsewhere.

Same-sex marriage would become illegal in at least 25 states if the Supreme Court struck down Obergefell, an analysis by the National Conference of State Legislatures for PolitiFact found earlier this year. In those states, lawmakers could change their previous restrictions on same-sex marriage that have been dormant for the past seven years. But many states have banned same-sex marriage in their state constitutions, which requires more effort to alter.

Religious liberty concerns are shrouding the bill

Republican senators have voiced concern that the same-sex marriage bill would infringe on religious liberty, which caters to objections raised by a powerful portion of the GOP base.

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Evangelical Christians, who overwhelmingly vote Republican, have among the lowest levels of support for same-sex marriage of any major demographic group, even as public opinion has shifted to support it. As of 2019, only 29 percent of white evangelicals said they support same-sex marriage, compared with 61 percent of Catholics and 69 percent of white mainline protestants, according to polling conducted by the Pew Research Center.

But from a policy standpoint, the Respect for Marriage Act, as it’s written, may not raise many religious liberty concerns, said University of Virginia law professor Douglas Laycock, who has argued religious freedom cases before the Supreme Court. Laycock has made the case that the country should approve both strong same-sex marriage laws and strong religious liberty protections for people who object to them.

“This bill doesn’t regulate the private sector, this bill regulates states. It says each state needs to recognize marriages performed in other states,” Laycock said. If Obergefell were repealed, the bill “doesn’t say that any employer, or landlord or anybody else in the private sector — like a wedding vendor — has to recognize” a same-sex marriage.

Some Senate Republicans are looking for even more protection, however. Several Republican senators have been working on religious freedom amendments to add to the bill in recent days, including Sens. Mike Lee (R-Utah), Ron Johnson (R-Wis.) and Susan Collins (R-Maine). The bill’s fate will likely rest on whether proponents like Baldwin can satisfy those concerns in time for the lame duck Congress.

How a debate over same-sex marriage shaped up in Congress

When the Supreme Court struck down Roe v. Wade in June, it opened a host of questions over whether other federal rights that have been enshrined by the court could also be tossed back to the states.

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A number of cases, including Roe and Obergefell, affirmed certain rights based on the 14th Amendment to the Constitution. Supreme Court Justice Clarence Thomas raised the possibility that the court should revisit those decisions in a concurring opinion he wrote to the Dobbs v. Jackson Women’s Health Organization decision.

“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Thomas wrote, referring to decisions that addressed rights to marital privacy (including the right to use contraception), sexual activity and same-sex marriage. He called such cases “demonstrably erroneous decisions.”

The Human Rights Campaign said it is not currently tracking any challenges to the Obergefell decision making their way through the courts. Experts pointed to a couple of potential reasons why: It’s possible that opponents of same-sex marriage haven’t found a suitable case to bring to the court. Or it’s possible they are waiting until after the contentious midterm elections to begin a challenge.

In addition to election-year politics, there is another reason that proponents of same-sex marriage may want to pass a new law: to enshrine same-sex marriage while Democrats still have control of both Congress and the White House.

“They obviously could wait until the Supreme Court does in fact overrule Windsor and Obergefell,” which together cemented a right to same-sex marriage, said Smith. “But at that point, who knows what the political situation would be in the Congress?”

Thanks to Alicia Benjamin for copy editing this article.

  • Maggie Severns
    Maggie Severns

    Domestic Policy Reporter

    Maggie Severns is a policy reporter for Grid covering complex policy stories and major headlines.