The Respect for Marriage Act, which has just gotten past cloture in the Senate with 12 Republicans joining all Democrats in support and is considered likely to pass before year end, would 1) repeal the old Defense of Marriage Act of 1996 and 2) forbid states from denying full faith and credit for purposes of state action to marriages lawfully contracted in other states on the basis of individuals’ sex, race, ethnicity, or national origin. It advances an obviously legitimate interest—shoring up the reasonable reliance interests of families that cross state lines—and does so in a way that is in accord with the Constitution, a question Congress should ask itself with every enactment.
On the constitutional question, the Full Faith and Credit Clause of the Constitution (Art. IV, Sec. 1) gives Congress explicit power to prescribe the manner in which legal acts arising in one state shall be given effect in another. That is what the operative section of the act does. At the same time, it does not presume to force states to issue new marriage licenses; that reticence is consistent with the federalist reality that marriage law has generally been a matter for the states.
In its Obergefell and Windsor rulings, of course, the Supreme Court has already required states to issue marriage licenses and recognize marriages while striking down DOMA. RFMA would thus have no immediate effect at all to speak of. But it would shore up most (not all) of the practical outcomes in Obergefell/Windsor in case of second thoughts from some future Court, while placing the body of law going forward on a statutory basis that could plausibly satisfy many of those unconvinced by the constitutional logic of Obergefell/Windsor.
The bill is also carefully drawn to attend to conscience and religious liberty concerns—one reason it gained quick traction in Congress, while maximalist progressive grabs like the Equality Act have floundered. As negotiations proceeded, those on the progressive side made real concessions on accommodating religious objections, concessions they’d never been willing to make before. Dale Carpenter at The Volokh Conspiracy has specifics:
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.”
Carpenter asks: “Can that same spirit of mutual respect and accommodation animate future discussions of LGBT policy issues?”
The provisions in question can be found in the amended bill at Section 6 (no impairment of Religious Freedom Restoration Act rights, no obligation of religious nonprofits to assist in celebrations) and Section 7 (tax exemptions, benefits, etc.: “Nothing in this Act, or any amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person, including tax‐exempt status…”)
It is further worth noting that it has never been marriage recognition itself that has fueled the intense controversies over state and local public accommodation laws (in which we at Cato have repeatedly sided with the small businesses’ liberty). Masterpiece Cakeshop itself, for example, arose under circumstances and at a time in which Colorado law recognized no marriage.
Critics have also maintained that the bill does not deserve priority because Obergefell is in no real danger, only two Justices (Thomas and Alito) on the current Court having signaled that they might not regard it as lawful precedent. As one who has predicted (and continues to predict) that the Court is not on course to restore gay marriage bans, I would just point out a different consideration: aside from bolstering the logic underlying the law, which is a good thing to do in itself, this measure would calm fears, take away a perceived grievance and in doing so work to lower the temperature of anti‐Court agitation.
Having defended the Supreme Court institutionally and much of the work of the current Court in particular from spurious charges of illegitimacy, I’m fine with such an outcome.
