The Respect for Marriage Act cruised through the House of Representatives on Tuesday with bipartisan support, landing in an evenly divided Senate where its future remains uncertain. As Senate Republicans squirm, dissemble, and dodge questions about the bill, a great deal of confusion remains about what it actually does. Most reports state that the RFMA would “codify” same-sex marriage, similar to Congress’ failed attempt to “codify” Roe v. Wade, by repealing the anti-gay Defense of Marriage Act. These reports typically elaborate that the legislation would “enshrine” marriage equality into federal law, language used by its congressional supporters.
None of these descriptions fully captures the scope of the RFMA. The bill would not require every state to license same-sex marriages, as they are currently obligated to under Obergefell v. Hodges. So it does not codify Obergefell, as some commentators—including Glenn Greenwald—have incorrectly asserted. The RFMA would repeal DOMA, directing the federal government to recognize same-sex couples’ lawful marriages. But it also goes further, compelling states to recognize same-sex marriages performed elsewhere—even if the Supreme Court overturns Obergefell and restores states’ authority to refuse marriage licenses to same-sex couples.
Put simply, the RFMA creates a backstop to ensure that every same-sex couple can retain protections after Obergefell’s demise if their own state nullifies their marriage. And it does so on strong constitutional grounds that should withstand any legal challenge.
A short history lesson helps illuminate the purpose and effect of the RFMA. In 1993, the Hawaii Supreme Court indicated that it would grant gay citizens the right to wed. This ruling provoked two major fears among anti-LGBTQ advocates. First, they worried that the federal government would recognize same-sex marriages performed in Hawaii. (Federal law affords more than 1,000 rights and privileges to married couples.) Second, they fretted that every other state would have to recognize these marriages due to the Constitution’s full faith and credit clause.
Congress responded to these concerns by passing DOMA in 1996. DOMA imposed a federal ban on same-sex marriage, denying federal rights and privileges to same-sex couples who are married under state law. It also declared that no state had an obligation to recognize a same-sex marriage licensed by another state. As a result, when same-sex couples began marrying in Massachusetts in 2004, they were still deemed legal strangers by the federal government and every other state. The Supreme Court invalidated DOMA in 2013’s U.S. v. Windsor, but it remains on the books, ready to spring back into effect should the court overturn Windsor.
Which brings us to the present. Windsor, like Obergefell, is gravely imperiled by the Supreme Court’s decision overruling Roe v. Wade. The majority announced a new test that acknowledges only those rights that were widely embraced in 1868, when the 14th Amendment was ratified. No one seriously argues that Americans viewed same-sex marriage as a fundamental right 154 years ago. So the majority’s logic would require the reversal of Windsor and Obergefell. In a concurrence, Justice Clarence Thomas declared outright that the court should eradicate its marriage equality precedents.
Congressional Democrats responded to this anti-gay assault with the RFMA. The bill repeals DOMA’s bar against federal recognition of same-sex marriage, replacing it with a mandate that the federal government recognize any marriage that is “valid in the state” where it was “entered into.” In other words, if you wed in a state that allows same-sex marriage, the federal government must recognize your union.
This provision, however, raises a pressing question: What happens if the Supreme Court overturns Obergefell and states are no longer obligated to allow same-sex marriage? About 35 states still have laws (or constitutional amendments) on the books that outlaw these unions, which would take effect once again if Obergefell falls. Ideally, Congress could order states to license same-sex marriages regardless of existing bans. But the Supreme Court has forbidden the federal government from telling states to pass or repeal their own laws.
So the RFMA does the next best thing: It compels every state to recognize a marriage licensed elsewhere without discriminating on the basis of those individuals’ “sex, race, ethnicity, or national origin.” (The bill also protects interracial marriage, though no state seeks to outlaw such unions right now.) To do so, the RFMA relies on the Constitution’s full faith and credit clause. This clause gives Congress the power to make states grant “full faith and credit” to the “public acts, records, and judicial proceedings” of other states.
Despite its broad language, this rule has been deemed largely optional by the Supreme Court, which lets states deny “full faith and credit” to another state’s laws, records, or judgments if it conflicts with their “public policy.” This opt-out doesn’t apply, though, when Congress exercises its constitutional authority to command nationwide uniformity under the clause. So, for instance, Congress has ordered every state to grant full faith and credit to a custody determination and child support order issued by another state. It took this step to prevent parents from kidnapping their children by absconding to a different state and relitigating a custody order against them.
Steve Sanders, a professor at the Maurer School of Law and expert on the clause, told me he believes the RFMA is perfectly constitutional. “The short answer is yes, Congress can do this,” he said. By giving Congress authority to “prescribe” the “effect” of “acts, records and proceedings” among states, the Constitution creates the federal power to make every state recognize a marriage licensed elsewhere. “While states normally are under no obligation to bow to the licenses or statutory policies of other states,” Sanders said, “this provision allows Congress to say, in effect, ‘You are required to give effect to a legal relationship created under another state’s law. You can’t treat their marriage license like a worthless piece of foreign currency.’ ”
Sanders pointed out that the law also appears to protect same-sex couples’ parentage rights over their own children. Many states only acknowledge these rights because of Obergefell, which compelled them to give same-sex parents the same “constellation of benefits” afforded to opposite-sex parents. So, for instance, a state must place both parents’ names on their child’s birth certificate and afford both parents the presumption of parentage; they cannot force one parent to “adopt” a child conceived through assisted reproductive technology.
The RFMA enforces this protection by directing states to respect any “right or claim arising from” a marriage licensed elsewhere without discriminating on the basis of sex. Parentage is a quintessential right “arising from” marriage, so states should have to put same-sex parents on equal footing with heterosexual couples. Sanders told me he hoped “that’s the understanding courts would give it,” though the language “could be more clear.”
Finally, the RFMA has a thorough enforcement mechanism to ensure that states do not evade its commands. It allows both the United States attorney general and victims of discrimination to file a federal lawsuit against any state agent who denies full faith and credit to a marriage license on the basis of “sex, race, ethnicity, or national origin.” A federal court may then issue an injunction ordering the individual to recognize the union. Same-sex couples can thus defend their own rights in court when a state or its employees treats them as second-class citizens.
In short, this bill goes as far as today’s Supreme Court could conceivably allow. If it passes and Obergefell falls, states can resume denying marriage licensing to same-sex couples. They might even be able to nullify the same-sex marriage licenses it provided under Obergefell. But couples who face such discrimination can travel to another state, obtain a new license, and compel their home state to recognize it, along with the rights and privileges it provides. And their marriage will receive full protection under federal law. As far as backstops go, it doesn’t get much better than the RFMA.