Respect for Marriage Act Passes After the Midterm Elections

The near-miracle of the Senate’s passage of the Respect for Marriage act (RFMA) on November 29, 2022 marks the first substantive national legislation since the mid-term elections.

It’s probably too optimistic to believe passage in the senate signals a new bipartisan era, but it doesn’t hurt to note that Republicans who voted for passage could be reacting to a new reality that the Senate no longer poses a solid barrier to progress, now that Democrats will have the majority there.

We can all hope that Democrats will accomplish all they can before the Republican takeover of the House of Representatives in the new Congress-but meantime, a look at the provisions of the Respect for Marriage Act is in order.

The RFMA passed 61-36 with the votes of 12 Republican senators, and repeals the 1996 Defense of Marriage Act, which relegated same-sex marriages to state law, clarifying that such arrangements were not recognized in federal law, and stating that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Signed by President Bill Clinton, DOMA’s passage meant that, even in states that authorized same-sex marriage, a non-biological parent could not have a legal relationship with a child of the biological parent in a same-sex couple. Moreover, same-sex couples could not take medical leave to care for their partners or non-biological children. They also could not adopt children and during divorce proceedings, they could not petition the court for custody, visitation rights, or child support.

Only 10 years ago, the U.S. Supreme Court declared DOMA unconstitutional for denying same-sex couples “equal liberty”under law, as it ruled in United States v. Windsor. In 2015, the high court in Obergefell v. Hodges decision required that states recognize the rights of same gender couples to marry. But last summer Justice Clarence Thomas expressed doubt in Dobbs v. Jackson Women’s Health Organization that overturned a half century of protection for the right to choose that both Obergefell and the 1967 Loving v. Virginia case requiring states to recognize the validity of interracial marriages were good law.

Wisconsin Senator Tammy Baldwin, the first openly gay woman in the U.S. House of Representatives before being elected to the senate in 2012, pushed for codifying Obergefell and Loving through passage of the RFMA in the Senate beginning this summer. Its ultimate passage will mean that individuals have a “private right of action” against discrimination in the context of marriage, but not that states must pass legislation to recognize same-sex unions.The RFMA provides a “private right of action” that allows an individual to bring suit for discrimination under federal law, but does not require churches or other nonprofits to provide services, accommodations, advantages, facilities, goods, or privileges “for the solemnization or celebration of marriage.”

Since passage in the Senate, the RFMA will return to House of Representatives for approval of senate amendments, and is expected to pass, since the House passed a similar bill this summer with support of 47 Republicans.

President Biden has indicated he will sign RFMA into law after the House acts, and released a statement that passage of the Act means the U.S. “is on the brink of reaffirming a fundamental truth: love is love, and Americans should have the right to marry the person they love. For millions of Americans, this legislation will safeguard the rights and protections to which LGBTQI+ and interracial couples and their children are entitled. It will also ensure that, for generations to follow, LGBTQI+ youth will grow up knowing that they, too, can lead full, happy lives and build families of their own.”