The US Respect for Marriage Act: An Analysis of Congress’ Decision to Codify Same-Sex Marriage into American Federal Law

President Biden, on 13 December, signed into law the Respect for Marriage Act (RFMA) – a law which accords same-sex and interracial marriages formal federal recognition and repeals the previously dormant Defence of Marriage Act (DOMA).[1] This law does not legalise same-sex marriage in the United States (which had already been legalised in 2015 by the Supreme Court’s decision in Obergefell v Hodges[2]).[3] Instead, it officially codifies same-sex marriage into federal law and shields married same-sex couples from the potential legal ramifications of Obergefell being overturned should an increasingly conservative Supreme Court ever decide to review this precedent in a manner similar to how it did in the case of Roe v Wade.[4]

Marriage, under United States federal law, was historically defined as being the union of a man and a woman.[5] RFMA’s passing, however, has changed this by broadening the definition of marriage to encompass same-sex unions, effectively making the federal laws surrounding the institution of marriage gender neutral.[6] In addition, RFMA has also expanded existing legal protections for same-sex couples. Prior to its passing, the only nation-wide legal protection for same-sex marriage was under the US constitution which, as per Obergefell, struck down both federal and state bans on same-sex marriage.[7] RFMA functions as a second line of legal defence that would be activated in the event of Obergefell being overturned. It would require all states (including the ones who prohibit same-sex marriage in their state constitution) to recognise same-sex marriages performed in other states. [8]

The passing of RFMA was, ultimately, the product of a bipartisan compromise in the US Congress between Republicans and Democrats. The Act first began as a bill in the House of Representatives, passing by a thumping margin of 257-157 votes.[9] It was then debated upon in the Senate with several modifications being made to it – the most notable of which being an amendment that would allow religious groups to opt out of performing same-sex marriages if it violated their faith and conscience to do so.[10] The Senate voted in favour of the modified bill by a margin of 61-36, allowing it to overcome the filibuster (a formidable hurdle to passing legislation in the US Senate that effectively requires 60% of senators to vote for a piece of legislation for it to pass).[11] The bill was then returned to the House which voted 258-169 to accept the modifications that the Senate had made, paving the way for Biden to sign it into law.[12]

What was most notable in both of the House and Senate votes was the considerable number of Republicans who crossed the aisle to vote with Democrats to pass RFMA – a rare showing of bipartisanship in the ordinarily polarised US Congress. The views held on gay marriage by these members of Congress are by no means out of sync with that of the general public. Indeed, a Gallup poll conducted in June of last year revealed that 71% of Americans now believe that same-sex marriage should be legal - a finding which illustrates the seismic shift in attitudes that have occurred towards this issue in recent years.[13]

The move to pass RFMA was prompted by the Supreme Court’s decision Dobbs v Jackson Women’s Health Organization.[14] In this case, the Court’s conservative majority overturned Roe v Wade, ruling that the US constitution does not contain in it the right to receive an abortion.[15] This caused numerous state laws banning abortion, which had previously been invalidated by Roe, to suddenly come into effect, depriving girls and women of the right to receive an abortion in many states.[16]

There was widespread concern among predominantly Democrat law makers that the toppling of Roe could threaten other due process precedents, such as Griswold or Obergefell.[17] Statements made by Justice Thomas of the Supreme Court appeared to lend credence to the notion that the Court was coming for same-sex marriage next.[18] In his concurrence in Dobbs, Thomas stated that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [right to obtain contraception], Lawrence [right to engage in private sexual intercourse], and Obergefell … we have a duty to “correct the error” established in those precedents.”[19]

These comments provoked an outcry among liberals and ignited a push to formally codify same-sex marriage.[20] The now retired Speaker of the House, Nancy Pelosi, spearheaded the charge to pass RFMA, stating that she and her Democrat colleagues “will pass two more bills to protect freedom in our nation, as extremist Justices and lawmakers take aim at more of our basic rights… Our Respect for Marriage Act will defend the right to marry whomever you love, as found in Obergefell v. Hodges and Loving v. Virginia.”[21]

The passing of RFMA is the legislature’s sharp rebuke to Justice Thomas’ argument that Obergefell, among other due process precedents, should be overturned. Congress has repudiated the notion that laws guaranteeing fundamental civil liberties, such as the right to marry or access contraception, ought to be struck down. They have also, by passing RFMA, offered much needed clarity to the Judiciary on where the parameters surrounding the laws on marriage equality are to be set. As per RFMA, same-sex couples are guaranteed the right to marry without requiring religious organisations to solemnise their unions. This necessary compromise, which achieves a pragmatic balance between religious and sexual liberty, is the boundary which the legislature has set. It would be foolish for the Supreme Court to deem itself wiser and stray beyond it.

RFMA’s passing will have profound implications for the debate surrounding the legality of same-sex marriage in the United States. The Act, which functions as Congress’ de facto codification of Obergefell v Hodges, will make it difficult for social conservatives in America to challenge the democratic legitimacy of same-sex marriage. They can no longer claim that it was only legalised because of a paper-thin, judicially activist majority on the Supreme Court of the United States. Instead, they have to begrudgingly concede that a firm and unwavering national consensus now exists in support of allowing gay couples to marry. The issue is, quite frankly, a matter of settled law and it is therefore time for us all to move on.

[1] Respect for Marriage Act; Emma Kinery, ‘Biden signs bill to protect interracial and same-sex marriages’ CNBC 13 December 2022 https://www.cnbc.com/2022/12/13/biden-signs-respect-for-marriage-act-to-protect-same-sex-interracial-marriages.html accessed 15/12/2022.

[2] Obergefell v Hodges 576 US 644 (2013).

[3] ‘Respect for Marriage Act: Senate passes same-sex marriage bill’ BBC 30 November 2022. https://www.bbc.com/news/world-us-canada-63656492 accessed 01/12/2022 .

[4] ‘Respect for Marriage Act: Senate passes same-sex marriage bill’ (n 3); Roe v Wade 410 US 113 (1973).

[5] Respect for Marriage Act.

[6] (n 5).

[7] (n 2).

[8] (n 5).

[9] Melissa Quinn, ‘House passes same-sex marriage bill, with 47 Republicans and every Democrat voting in favour’ CBS News 21 July 2022 https://www.cbsnews.com/news/same-sex-marriage-bill-house-vote-pass/ accessed 01/12/2022.

[10] Respect for Marriage Act; Sahil Kapur, ‘Senate passes bill to protect same-sex and interracial marriage over GOP opposition’ CBS News 29 November 2022 https://www.google.ie/amp/s/www.nbcnews.com/news/amp/rcna59125 accessed 03/12/2022.

[11] Kapur (n 10).

[12] Daniella Diaz, ‘House passes bill to protect same-sex marriage in landmark vote sending it to Biden’ CNN 8 December 2022 https://edition.cnn.com/2022/12/08/politics/same-sex-marriage-vote-house/index.html accessed 15/12/2022.

[13] Justin McCarthy, ‘Same-sex marriage support inches up to new high of 71%’ Gallup 1 June 2022 https://news.gallup.com/poll/393197/same-sex-marriage-support-inches-new-high.aspx accessed 15/12/2022.

[14] Emma Kinnery (n 1).

[15] Dobbs v Jackson Women's Health Organization US 597 (2022); ‘Tracking the States Where Abortion Is Now Banned’ The New York Times January 6 2023 https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html accessed 16/01/2023.

[16] ‘Tracking the States Where Abortion Is Now Banned’ (n 15).

[17] Clare Foran, ‘House passes bill to protect same-sex marriage in effort to counter Supreme Court’ CNN 19 July 2023 https://edition.cnn.com/2022/07/19/politics/house-vote-same-sex-marriage-protections-supreme-court/index.html accessed 16/01/2023.

[18] Foran (n 17).

[19] Dobbs v Jackson (n 15).

[20] Foran (n 17).

[21] Foran (n 17).