Respect for Marriage Act

The House (258-169) passed the Respect for Marriage Act after the Senate (61-36) did so. Now, it has been presented to the President, who likely would have some sort of signing ceremony. This is one of those bills that seem worthy of that sort of thing.

What is the purpose of this bill?  The basic concern cited is that after the Dobbs abortion ruling, the right to marry might be at risk.  Yes, the majority there (minus Thomas) assured us "only abortion," but that is something of a fool's bet.  This includes some specific marriage matters.

The Respect For Marriage Act does -- to the degree that Congress has the power to do so (simply stating there was a constitutional right of same-sex couples to marry would not work if the Supreme Court held otherwise) -- provides a safe backstop.  Also, again in a way that would pass Congress, especially with the filibuster in place, it sends a message to the Supreme Court.  

Finally, and quite importantly, it sends a message of equality overall.  This was a basic sin of the Defense of Marriage Act itself.  DOMA did not simply (it alone dubious) safeguard states from (the horror) having to recognize out-of-state same-sex marriages.  It singled out same-sex marriage as not marriage for the sake of federal law.  Even if a state decided to recognize it.  

Breaking Down The Law

What does the law (as it will be once Biden signs it or let's ten days, not including Sundays, pass) do?  From the title down, it actually is rather well done.  And, the "enrolled bill" (see link) is basically simple, almost fitting on a single page.  It could really, especially if you use a small font and smoosh it some.  Let's look at it.  There are eight sections.  

The first section simply provides the title. A nice and simple one. It respects marriage. It does not "defend" it by blocking same-sex marriage from the same development as various other changes in marriage have gone through. The "traditional" marriage bit is silly.  Do we want coverture, not allowing people to have sex outside of marriage, and divorce almost impossible?

The second section has three simple findings.  They are short enough that it pays to simply quote them in full:

(1) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.

(2) Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.

(3) Millions of people, including interracial and same-sex couples, have entered into marriages and have enjoyed the rights and privileges associated with marriage. Couples joining in marriage deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.

The first is a bit exaggerated (Prof. Melissa Murray has written criticism of Justice Kennedy's rhetoric about marriage in Obergefell).  Marriage is a mixed bag.  But, that is a fine enough sentiment.  

And, the second and third statements are framed carefully.  Even someone against same-sex marriage might accept the framing to some extent.  And, some who find opposition to same-sex marriage as bigotry might accept the wording too.  After all, "the role of gender" means different things. 

The next section repeals this provision:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

U.S. v. Windsor declared the provision as to federal benefits unconstitutional without doing the same regarding that part of DOMA, which was not at issue in that case.  

Obergefell did hold that as to "whether the Constitution requires States to recognize same-sex marriages validly performed out of State," the answer is "yes."  

It has long been recognized that the Supreme Court determines what "the law is," so Congress could not say same-sex marriage is protected by the Constitution and expect the Supreme Court to be bound by its say-so.  But, Congress also has power over full faith and credit (Art. IV).  

(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

This is the heart of the law.  Congress is doing a reverse DOMA here, using its power over the "manner" and effect" of full faith and credit in the promotion of equality.   No state or person acting thereof can violate those rules. The Attorney General of the United States and civil actions can be used to enforce the section.  

This seems to be constitutionally proper.  I do not think Congress actually, at least to this length, required states to do it.  There has traditionally been a right recognized for states to evenhandedly not recognize marriages that violated state norms. So, a state does not have to recognize an out of state first cousin marriage.  But, that has not been put to the test in the teeth of this sort of rule.  And, it would not even now, unless Obergefell itself is challenged.  

The next section provides a neutral rule to define marriages for federal purposes.  To skip ahead, it is noted (see Prof. Murray?) that the law doesn't affect rights arising from something other than marriage. So, if a state has a domestic union law, this does not affect the benefits involved there.  

Also, it doesn't recognize polygamous unions. Oberfefell noted that marriage between two individuals was a basic aspect of marriage.  Worldwide, and by a limited number of people here, this is discriminatory.  They support polygamy.  We are not there yet.  But, even here, the law and its history do not single out polygamy as "immoral" and such to the degree DOMA did for same-sex marriage.  

The last section protects the rest of the law if somehow some aspect of it is found to be unconstitutional.  Okay.  What about the remaining section, the "NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE" provision? Is this a little poison pill that we just have to bear given the rest?  Actually, I do not really think so.   

I think the first part of this section is enough:

Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.

But, there is a continuing concern about religious liberty ("religious liberty" if you wish), including on controversial matters of this sort.  The provision reminds us that there already are constitutional and statutory (such as RFRA) protections.  A priest need not hold a marriage ceremony.

Again, let us look at the whole text of the second section, which some have argued is problematic:

(b) Goods Or Services.—Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.

This a long paragraph, but what is really at stake here? Does the provision really expand what is already protected? I have my doubts. If anything, I think it clarifies that possibly open-ended language should not be interpreted too far.  It is possible that the use of this more limited language in legislation can be useful in that respect.  Maybe so.  

Let's break that down.  First, whatever is done here has to be "consistent with the First Amendment."  If the demand is not so consistent, such as if it wrongly burdens third parties or favors some religions over others, it would not apply.

Next, the protection is cabined, if perhaps maybe as much as some might like.  First, it applies only to "nonprofit religious organizations," so the for-profit wedding web designer involved in the case heard this week would not apply.  

Also, "whose principal purpose is the study, practice, or advancement of religion" narrows things down some more. 

What is covered by that provision that would not otherwise be assumed to be covered?  The coverage of "services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage" might apply to a church or school that owns some property that they allow to be used.  But, again, it is "non-profit" etc.  

If a private school wants to only use its space for events that do not violate its mission statement, generally speaking, I would think they have a First Amendment right to do so.  The provision might bring within its ambit something that should not be covered.  I guess. But, really, what exactly are we talking about here? This is not Hobby Lobby or something. 

Again, IF some example crosses the line under the First Amendment, the provision does not even apply!  As a whole, I think it is even less offensive than I thought it was, and I didn't think it was that much at that.  

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The Respect for Marriage Act is a good piece of legislation that is carefully crafted.  This is why some LGBTQ types strongly support it, including the leading sponsors, who check one or more of those boxes (or family members do).  

It should have passed before now, but glad it was passed now.  When the votes are there, such support for equality should be passed. The same is true regarding the right to choose an abortion.