This week we'll take a closer look at the Respect for Marriage Act. Many believe this legislation is crucial in upholding marriage equality after the Supreme Court rulings this summer have lead to general uncertainty. A look at the Defense of Marriage Act, what the Respect for Marriage Act is, and why it was proposed.
What is the Defense of Marriage Act?
The Defense of Marriage Act (DOMA) was passed in 1996 and signed into law by President Bill Clinton. The first line of the bill text reads: To define and protect the institution of marriage. The short bill had a massive impact on the legality and recognition of same-sex marriage in the United States.
Section 1 is simply a Short Title: This Act may be cited as the 'Defense of Marriage Act'.
Section 2 of the act allows states to deny recognition of legal and recognized same-sex marriages conducted by other states should a legally married couple move to a state that has not passed legislation to recognize same-sex marriage.
Section 3 of the bill amends Chapter 1 of title 1, United States Code, Sect. 7 known as Definition of 'marriage' and 'spouse'. The bill reads: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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." This language codifies non-recognition of same-sex marriages for all federal purposes when it comes to protections and benefits, think insurance benefits for government employees, social security survivors' benefits, immigration, filing joint tax returns, and more.
There were two important Supreme Court decisions United States v. Windsor (2013) and Obergefell v. Hodges (2015) which changed how the DOMA could be enforced. With the Windsor decision, the Supreme Court declared Section 3 unconstitutional under the Due Process Clause. This decision made it a requirement for the federal government to recognize same-sex marriages conducted by the states for all federal purposes. With Obergefell v. Hodges, the Court held that same-sex marriage was a fundamental right protected by both the Due Process Clause and the Equal Protection Clause. The ruling requires all states to perform and recognize the marriages of same-sex couples. This decision left Section 2 of DOMA as superseded and unenforceable. The only section of this bill that has not been unconstitutional or legally devoid is Section 1, relating to its short title. After these decisions, any enforcement of DOMA was invalidated in the United States.
Although these Supreme Court decisions effectively rendered DOMA inert, this law is still officially on the books and would become enforceable should Windsor or Obergefell be overturned.
What is the Respect for Marriage Act?
The Respect for Marriage Act (RMA) repeals the Defense of Marriage Act and require the federal government to recognize the validity of same-sex and interracial marriages in the United States. The bill aims to codify many protections when it comes to recognizing same-sex marriage around the United States.
Similar to the DOMA, marriage is defined in the bill:
- For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
- In this section, the term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
The bill also prohibits any state official, or anyone acting on behalf of the state, from "denying full faith and credit to an out-of-state marriage based on the sex, race, ethnicity, or national origin of the individuals in the marriage".
These sections are important because they require states and their employees and officials to recognize a marriage whether or not they have passed legislation to recognize same-sex marriage, as long as the state where it was performed has passed legislation to codify the legality of this type of marriage.
The RMA also provides the attorney general with the authority to pursue enforcement actions for any individual harmed by a violation. On top of that, it creates a private right of action, stating "Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief."
In July, the Respect for Marriage Act passed the House of Representatives 267-157, garnering 47 Republican votes. In mid-July, the Senate bill was read twice and referred to the Committee on the Judiciary, where it currently stands. In early September, Senate Majority Leader Chuck Schumer stated that the Senate will vote on RMA in the coming weeks. However, in mid-September, it was announced that the bill's vote will be delayed, maybe even until after midterms.
Why was this legislation proposed?
Many people are concerned about protections for LGBTQIA people put in place by Supreme Court decisions after Roe v. Wade was overturned this summer. Some rights and protections that many Americans see as part of society still have rules like DOMA (or abortion trigger laws) in place. This worries many because should the decision that invalidated something like DOMA be overturned, it could become enforceable again. Legislation that codifies these protections at a national level have not been prioritized in the past because sociatally we believed these SCOTUS decisions to be president and the rights afforded to people by past decisions to be protected.
The change in this this summer with the Dobbs v. Jackson decision has made many individuals scared that other decisions that protect people's rights (like the overturning of DOMA or Loving v. Virginia), could be in jeopardy.
Senator Feinstein, who introduced the Senate bill along with Tammy Baldwin (D-Wis.), Susan Collins (R-Maine), and Robert Portman (R-Ohio), had this to say about the legislation: "In overturning Roe v. Wade, the conservative Supreme Court majority indicated it is willing to attack other constitutional rights, including same-sex and interracial marriage. In fact, one justice specifically noted that the court’s Obergefell decision confirming same-sex marriage should be revisited. Our bill would repeal the discriminatory Defense of Marriage Act and ensure that marriage equality remains the law of the land."
Senator Collins said "Maine voters legalized same-sex marriages in our state nearly a decade ago, and since Obergefell, all Americans have had the right to marry the person whom they love. During my time in the Senate, I have been proud to support legislation prohibiting discrimination based on sexual orientation and gender identity, from strengthening hate crime prevention laws, to repealing ‘Don’t Ask, Don’t Tell,’ to ensuring workplace equality. This bill is another step to promote equality, prevent discrimination and protect the rights of all Americans."
Cover Photo by Ian Taylor on Unsplash
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