Freedom of Marriage

December 15, 2022
Image

Respect for Marriage

A new law replaces an old one as the U.S. president signs bipartisan legislation described as "a blow against hate in all its forms."

Background

  • 2015: A Supreme Court ruling affirms the right to marry someone of the same gender; this came after lower courts had upheld a state’s power to ban same-sex marriage.
  • Some states still have legal bans on same-sex marriage, though not currently enforceable.
  • The recent Supreme Court ruling on abortion, deferring to states to set limits on access to the procedure, sparked concern by some that the 2015 ruling on same-sex marriage could be challenged or overturned by deferring to laws still on the books at a state level (i.e. bans.)

Respect For Marriage Act

  • Respect for Marriage officially repeals the Defense of Marriage Act of 1996 – federal legislation defining marriage between a man and a woman.
  • Affirms federal recognition of same-sex marriage.
  • Requires states to recognize a valid marriage license from another state (regardless of sexuality, race, etc.) *even if* a future Supreme Court ruling empowers a state to legally define or limit marriage.

What It Doesn't Do

  • It does not make same-sex marriage the law of the land (i.e., does not “codify” it).
  • It does not force states to make same-sex marriage legal, even though a prior Supreme Court ruling affirms the right to marry whom you want. It does empower a couple to sue if they are married in one state but another state refuses to recognize their union.
  • Bottom line: It protects a right affirmed by the Supreme Court but doesn’t make it federal law. Instead, it creates a safety net in case that right is someday challenged and overturned.
"Why did Congress draw a distinction between licensing and recognizing marriages? Because it wanted to remain on firm constitutional ground … Time and again, the court has ruled that the federal government cannot 'commandeer' states to enforce federal laws or pass specific statutes."

Mark Joseph Stern, Slate. The Respect for Marriage Act was passed in the House with a 258-169 vote. All Democrats and 39 Republican lawmakers voted in favor of it.

As a senator, Pres. Biden voted for the Defense of Marriage Act – defining marriage between a man and a woman – in 1996. Since then, he has gradually adopted a different stance. He signed the Respect for Marriage Act into law on Tuesday.

Biden signs gay marriage law, calls it ‘a blow against hate’ (The Associated Press)

Without Obergefell, Most States Would Have Same-Sex Marriage Bans (The Pew Charitable Trusts)

by Jenna Lee,

ImageImageImageImage