Majority Leader Chuck Schumer started the process for the Senate to vote on the Respect for Marriage Act (RFMA), the bipartisan compromise to protect same-sex and interracial marriages at the federal level, filing Monday for the first procedural vote on the bill. That procedural vote is set to happen Wednesday.
The RFMA repeals the Defense of Marriage Act, the 1996 law that defined marriage for federal purposes as the union of one man and one woman and allowed states to refuse to recognize same-sex marriages that were granted in other states. That’s the part of the legislation being roundly celebrated, because it means same-sex and interracial marriages will be legal everywhere, even if the U.S. Supreme Court overturns their 2013 decision U.S. v. Windsor, the decision that found DOMA unconstitutional, as Justice Clarence Thomas has threatened.
One of the key things about the RFMA and DOMA, Slate’s Mark Joseph Stern notes, is that much of federal policy since the Obama administration that guarantees marriage equality across a broad spectrum—“health care, immigration, labor, military service, taxes, Social Security”—has been granted by executive order. Those executive mandates, applying the same rights and privileges straight married couples have always had to same-sex couple, could be gone at the whim of a Republican president. In fact, Trump tried in a few instances.
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This law would “preempt such backsliding by wiping DOMA off the books for good, declaring that same-sex couples must receive every right and privilege of marriage granted by the federal government.”
The other part of the bill requires that every state must recognize marriages licensed in other states. What it doesn’t require, as the Supreme Court’s 2015 Obergefell decision does, is that every state must license same-sex marriages. So a couple would need to travel out of their home state, if they’re in one of the dozen or so with marriage bans on the books, to get married. Their home state would, however, have to recognize and extend the benefits of their union.
That’s a recognition of long-standing Supreme Court rulings that the federal government cannot force or “commandeer” states to pass state statutes or enforce federal laws. The federal government can do things like withhold certain funding if states don’t pass laws; that’s what they did in 1984, when they set a minimum legal drinking age of 21, tying federal highway funds to states’ passing that law. But, writes Stern, “If Congress compelled states to license same-sex marriages, the judiciary would invalidate the law as a violation of this anti-commandeering doctrine.”
A Supreme Court that would be willing to toss the precedent of Obergefell would be willing to overturn a federal ‘respect for marriage’ law. That’s the unfortunate reality that has resulted in this part of the law. If the Court overturns Obergefell—and only in that instance, it’s important to point out—then states could refuse to grant these marriage licenses. But they wouldn’t be able to discriminate against resident couples who were legally married in other states. That would stand up to Supreme Court scrutiny, Stern argues, “because the Constitution’s full faith and credit clause gives Congress the power to make states grant ‘full faith and credit’ to the ‘public acts, records, and judicial proceedings’ of other states.” The high court isn’t likely to mess with that.
Beyond that, the RFMA also protects any “right or claim arising from such a marriage.” In other words, children—whether through adoption, or conception with a donor, or surrogacy. The law would require that states have to honor couples’ parentage of children born into the marriage. Because same-sex adoption has become yet another cultural flashpoint from the right, protecting the rights of parents is critical.
In terms of religious liberty stuff, and there’s a lot of it in the bill, it just reiterates the status quo, and to make certain members of the Republican conference happy, it says specifically that by ending the definition of marriage in DOMA—one man and one woman—Congress isn’t saying that polygamous marriages are okay.
The bill is getting support of everyone from the Church of Jesus Christ of Latter-day Saints to this guy:
Could it be better? Yes, it could. It could skip the whole part about putting the right of states to discriminate by refusing marriage licenses into federal law. That stings, even if it’s a reflection of the reality in which we live under this Supreme Court. As does the fact that Senate Democrats chickened out on putting this bill on the floor before the election, forcing Republicans to show their bigoted hands. The protections it does extend, however, are critical.
Election Night 2022 was full of surprises—mostly for people pushing the last couple months of traditional media narrative of a "red tsunami." The problem is that Americans are not super into the GOP. Markos and Kerry have been saying the media narrative was wrong for months, and on Tuesday, Daily Kos and The Brief team was validated.
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