Briefing

The Respect for Marriage Act, explained

If same-sex marriage is already legal, why does it need protection?

The Respect for Marriage Act, a bill that aims to reinforce same-sex marriage rights, secured official Senate passage at the end of November after avoiding a possible filibuster in the middle of the month. The final vote was bipartisan, or as bipartisan as it gets in these polarized times: 12 Republicans joined 49 Democrats in supporting the measure. (One Democrat and two Republicans did not vote.)

The bill will now move back to the House of Representatives so lawmakers can approve a Senate-added religious freedom amendment before sending the legislation to President Biden's desk. House passage is expected; the bill initially cleared the lower chamber in July, that time with 47 Republicans on board. The widespread support is a striking departure from the 1990s, when Congress passed a law opposing gay marriages, or even the early years of this century, when Republicans used alarm over same-sex marriage to turn out their supporters during the 2004 presidential election. Now? Those once-feared marriages have widespread national support. So why is Congress passing a law to protect them? Here's everything you need to know:

Isn't same-sex marriage already legal?

Yes. The Supreme Court ruled in Obergefell v. Hodges that the 14th Amendment to the Constitution requires states to recognize — and license — same-sex marriages. That happened in 2015, relatively recently in court time, but a lot has changed since then. Justice Anthony Kennedy, the moderate Republican justice who authored that ruling, retired in 2018. The court now has a 6-3 conservative supermajority that in June 2022 overturned the right to abortion in Dobbs v. Jackson Women's Health Organization.

And that's relevant to this story: In a concurring opinion in Dobbs, Justice Clarence Thomas wrote that the court should also reconsider other precedents, including the marriage ruling. Even some progressives agreed that the logic of the abortion ruling "would absolutely threaten the constitutional legitimacy of all constitutional privacy rights," one law professor told The Guardian. So Democrats in Congress began working on a bill that would guarantee federal recognition of same-sex marriage, whether or not the Supreme Court ever chooses to reverse it.

What does the new bill entail?

The Respect for Marriage Act does not codify Obergefell, Mark Joseph Stern writes at Slate. Instead, it repeals the Clinton-era Defense of Marriage Act (DOMA) that bars the federal government from recognizing same-sex marriages and instead requires the feds to recognize marriages that were valid when and where they were conducted. "So if a same-sex couple obtains a valid marriage license from any state, the federal government must recognize their union," Stern writes. The bill also requires states to recognize marriages validly conducted in other states: If Obergefell falls, Texas wouldn't be required to issue marriage licenses, but it couldn't refuse to recognize marriages performed over the state line, either. 

One thing the bill does not do, however, is require the government to recognize marriages between more than two people."There is not a single state that allows for polygamous marriages," Sen. Susan Collins (R-Maine) said in September.

What about religious liberty?

The only way to get Republican support for the bill was to include language protecting religious organizations. Per The New York Times, the act guarantees that religious entities "would not be required to provide any goods or services for the celebration of any marriage," and that nothing in the law would affect or remove the tax exemptions that churches and religious nonprofit agencies receive. 

Because of those provisions, the Mormon Church — which does not approve of same-sex marriages — endorsed the bill. While church doctrines limiting marriages to the man-and-woman variety will remain unchanged, the church said in a statement that the Respect for Marriage Act "includes appropriate religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters."

What is the opposition saying?

The religious liberty carve-out didn't satisfy all religious groups. The Missouri Baptist Convention — an affiliate of the Southern Baptist Church — and Catholic leaders oppose the bill, The Associated Press reports. "The bill will be a new arrow in the quiver of those who wish to deny religious organizations' liberty to freely exercise their religious duties, strip them of their tax exemptions, or exclude them from full participation in the public arena," said Cardinal Timothy Dolan of New York.

In a mid-November test vote, 37 Republican senators voted against letting the bill proceed (a similar number voted against its final passage). Some, like Sen. John Cornyn (R-Texas), said the act is unnecessary because same-sex marriage "is already a Constitutional right." His fellow Texas Republican, Sen. Ted Cruz, went further, asserting the law would let the Biden administration "target universities, K-12 schools, social service organizations, churches and strip them all of their tax-exempt status." 

What's next?

The bill now heads to the House, where lawmakers will vote on the Senate-approved version. Pending passage, it will then move to Biden, who has said he will sign it into law.

Update Nov. 30: This article has been updated throughout to reflect Senate passage of the Respect for Marriage Act.

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