PETER SPRIGG 

U.S. “Respect for Marriage Act” (H.R. 8404): Questions & Answers

December 20, 2022

What is the “Respect for Marriage Act?”

The Respect for Marriage Act (H.R. 8404) is a bill whose primary purpose is to repeal the 1996 federal Defense of Marriage Act.

PETER SPRIGG, FWI DIRECTOR OF RESEARCH & ADVOCACY

The original version of the bill was introduced on July 18, 2022 by Rep. Jerrold Nadler (D-NY), and it was hastily passed by the House of Representatives the next day on a 267-157 vote, which included the support of 47 Republicans. The Senate did not act on the bill until November (after the mid-term elections). The bill was substantially amended in the Senate, which then passed it on November 29 by a 61-36 vote, which included the support of 12 Republicans. The House agreed to the Senate version of the bill on December 8 by a vote of 258-169 (including 39 Republicans in support), with one member voting “present.” President Biden signed the bill into law on December 13—making no mention of the fact that as a U.S. senator, he had voted in favor of the bill it repealed.

What was the Defense of Marriage Act?

In the wake of some early state court decisions in the 1990s suggesting that same-sex couples might have a constitutional right to enter into civil marriages, Congress passed the Defense of Marriage Act (DOMA) in 1996.

It had two main provisions. One declared that states would not be required to recognize same-sex marriages from other states. The second declared that for all purposes under federal law, marriage would be defined as the union of one man and one woman. DOMA was passed by large, bipartisan majorities in both houses of Congress, and was signed into law by President Bill Clinton.

Is the Defense of Marriage Act still being enforced?

No. In a 2013 Supreme Court decision, U.S. v. Windsor, the U.S. Supreme Court struck down the provision in DOMA that prohibited federal recognition of same-sex marriages that were treated as legal by a state. Windsor left somewhat unclear whether states could still refuse to recognize same-sex marriages from other states. However, the Court’s 2015 decision in Obergefell v. Hodges required all states to both license and recognize civil marriages between same-sex couples.

Does the Respect for Marriage Act really change anything for same-sex couples in the United States, then?

No. H.R. 8404 does not provide same-sex couples with any rights or recognition that they have not already had for the last seven years since the Obergefell decision.

If the bill doesn’t change anything, why did the sponsors introduce it?

Although DOMA is no longer in effect, it is still on the books, so some who dislike DOMA would like to see it removed from the federal code altogether.

However, the impetus for action on this bill in 2022 came from something Supreme Court Justice Clarence Thomas wrote in his concurring opinion in the Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization. That was the decision in which the Court overturned the 1973 Roe v. Wade decision that had declared a constitutional right to abortion.

In his opinion, Justice Thomas criticized not only Roe, but the entire constitutional theory upon which it rested—“substantive due process,” a concept which Thomas believes has no legal merit. He wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” (Griswold v. Connecticut declared a constitutional right to contraception in 1965; Lawrence v. Texas declared a constitutional right to homosexual sodomy in 2003; and Obergefell v. Hodges declared a constitutional right to same-sex marriage in 2015.)

This led advocates of same-sex marriage to call for legislative action to protect the right to same-sex marriage, even if Obergefell were to be overturned.

Is there really any reason to believe that Obergefell might be overturned?

No. Justice Thomas was writing only for himself—not one other justice joined his concurring opinion. In his opinion for the Court majority in Dobbs, Justice Samuel Alito stated, “[W]e emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

In addition, there has been no large-scale political movement to try to overturn Obergefell, as there was against Roe, even among those who believe that Obergefell was wrongly decided. This is probably because the consequences of Obergefell have not been as grave as the consequences of Roe—which led to the killing of millions of unborn human beings.

What are the specific provisions of the Respect for Marriage Act regarding the recognition of marriages?

H.R. 8404 basically reverses both substantive provisions of the 1996 DOMA. Whereas DOMA said states do not have to recognize same-sex marriages from other states, the Respect for Marriage Act says that states must recognize a legal marriage between two individuals, regardless of their sex.

And whereas DOMA prohibited the federal government from recognizing any same-sex marriages, even if they were legal in a state, the Respect for Marriage Act requires the federal government to recognize any marriage between two individuals that is legal in any state.

Does the Respect for Marriage Act require states to issue licenses for same-sex marriages?

Technically, no, because Congress has no authority to dictate to states on domestic issues such as marriage. In this sense, media reports saying the bill would “codify Obergefell” are misleading. However, the bill does require states to give “full faith and credit” to same-sex marriages from other states, pursuant to Article IV, Section 1 of the Constitution. And as long as the Supreme Court’s decision in Obergefell v. Hodges remains on the books, states will be required to license same-sex marriages as well.

Does the Respect for Marriage Act contain any protections for the conscience and religious liberty of people who do not agree with redefining marriage to include same-sex couples?

Throughout the debate over same-sex marriage in the United States—both before and after the 2015 Supreme Court decision in Obergefell—one of the concerns raised by opponents of such a redefinition has been that it would harm freedom of conscience and religious liberty. The fear is that same-sex marriage will result in limitations upon the freedom to believe, and to act upon the belief, that marriage is the union of a man and a woman.

The original version of the bill passed by the House contained no protections for religious liberty.

However, when the bill went to the Senate, a small bipartisan group of senators, led by Democrat Tammy Baldwin of Wisconsin and Republican Susan Collins of Maine, proposed an amendment that would add three new sections to the original five sections in the House bill—ostensibly in an effort to protect religious liberty. This amendment was adopted, and the revised version is what passed the Senate and was then accepted by the House.

What did the Baldwin-Collins amendments claim to do?

Respect all beliefs

The first change was to add a section with “Findings.” One of these findings stated, “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,” and that “such people and their diverse beliefs are due proper respect.” (This provision echoed what Justice Anthony Kennedy wrote in his opinion for the Court in Obergefell, when he stated, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”)

Respect all marriages

While the “decent and honorable” clause seemed like a concession to opponents of same-sex marriage, another finding explicitly endorses same-sex unions, saying that all married couples, including same-sex couples, “deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.”

Maintain existing religious liberty protections

Another new section bore the heading, “NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE.” The first clause in that section says that this bill does not reduce existing religious liberty protections: “Nothing in this Act … shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available” under the Constitution or federal law.

Protect religious organizations from being required to participate in same-sex marriage ceremonies

The second clause says that religious organizations do not have to participate in same-sex marriage ceremonies: “nonprofit religious organizations, including churches, mosques, synagogues, temples,” and other organizations “whose principal purpose is the study, practice, or advancement of religion,” and their employees, “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”

Maintain existing federal benefits

The last section added states that the Act “shall not be construed to deny or alter any benefit, status, or right … that does not arise from a marriage”—such as tax-exempt status, or federal grants, contracts, loans, scholarships, etc.

Provide NO recognition of polygamous marriages

The original House bill limited the provision requiring states to recognize other state’s marriages to “a marriage between 2 individuals,” but such a restriction was omitted from the section on federal recognition of state marriages. So the amendment added a line saying, “Nothing in this Act … shall be construed to require or authorize Federal recognition of marriages between more than 2 individuals.”

Are most supporters of religious liberty satisfied with the protections offered in the bill?

No. For example, one group of four legal scholars in the field of religious liberty wrote a letter endorsing the bill. But a group of over eighty leaders of national and state organizations and religious colleges wrote in opposition to it.

Are there any religious organizations that endorsed the bill?

Yes. Several generally liberal organizations that support same-sex marriage anyway have endorsed it, such as the Anti-Defamation League, the Episcopal Church, and the Unitarian Universalist Association. However, a few generally conservative organizations also endorsed the Baldwin-Collins amendments, such as the National Association of Evangelicals and the Church of Jesus Christ of Latter-day Saints.

Why would organizations that oppose same-sex marriage endorse this bill?

They may believe that there is little to no chance of rolling back the legalization of same-sex marriage in the United States, and therefore conclude that the bill’s provisions effectively endorsing same-sex marriage will have no practical effect in changing the current situation. Meanwhile, they may believe that getting at least some protections for religious liberty regarding marriage enshrined into federal law is better than getting none.

The concern of critics, however, is that the limited protections in the Respect for Marriage Act may end up functioning as a ceiling upon how much religious liberty will be tolerated, rather than as a floor on which to build future improvements.

Does the Respect for Marriage Act have implications for other countries as well?

While the law does not have any legal force anywhere except the United States, and may have little impact on the status of same-sex couples in the U.S., members of Congress should have given consideration to its symbolic implications around the world. Currently, only 33 countries recognize civil marriage between persons of the same sex—a small fraction of the 193 Member States in the United Nations. Although most countries of the world have stood firm against Western pressure to redefine marriage, Wikipedia lists eight countries where courts or legislatures are currently considering legalization of same-sex marriage, and another five where they are considering creating “civil unions” as a marriage equivalent for same-sex couples. Members of Congress who consistently opposed same-sex marriage before the Obergefell ruling in 2015, but now see little chance of overturning it in the United States, may have concluded it would make little difference to vote for a bill that declares explicitly that same-sex couples “deserve to have” the protections of marriage. However, such an affirmation by the United States Congress may undermine other countries that are fighting to remain faithful to the natural, man-woman definition of marriage.

What are some of the criticisms of the bill and its religious liberty provisions?

• The provision saying that the bill does not “diminish or abrogate a religious liberty or conscience protection otherwise available” is better than some LGBT rights legislation such as the proposed Equality Act, which would explicitly forbid the use of the federal Religious Freedom Restoration Act as a defense. However, the provision in the Respect for Marriage Act adds no new protection to existing law.

• The provision saying that “nonprofit religious organizations” and their employees are not required to provide goods or services “for the solemnization or celebration of a marriage” is a relatively narrow statement that only protects practices which have never been challenged in the first place. The First Amendment to the Constitution, which protects the “free exercise” of religion, is likely sufficient to prevent “churches, mosques, synagogues, temples,” and other explicitly religious organizations from being forced to participate in the “solemnization or celebration of a marriage” that goes against their religious principles. However, this provision does nothing to protect small businesses, like those in the wedding industry, that have a conscientious objection to celebrating same-sex weddings. Nor would it protect nonprofit organizations (like Family Watch International) that oppose same-sex marriage but do not have as their “principal purpose … the study, practice, or advancement of religion.” It would not protect the conscience rights of individuals who are not employed by religious nonprofits. And even the protection offered to religious nonprofits extends only to “the solemnization or celebration of a marriage”—the wedding ceremony itself—and not to other practices that might violate their principles, such as the granting of benefits to the same-sex spouse of an employee.

• The provision stating that “Nothing in this Act … shall be construed to deny or alter any benefit,” such as tax-exempt status, does not protect against the use of other areas of federal law to punish organizations or individuals for opposing same-sex marriage.

• The provision saying, “Diverse beliefs about … marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises” is a welcome rebuke to LGBT activists who assert that only “bigotry” and “hate” can possibly justify opposition to same-sex marriage. However, this concession seems to be undermined by the bill’s inclusion of protections for “interracial” marriages as well as same-sex ones—thus effectively equating opposition to same-sex marriage with the racial bigotry that once led some people to oppose interracial marriages (and perhaps even falsely implying that the same people who oppose same-sex marriages also oppose interracial ones). This is despite the fact that Justice Thomas’s comment in the Dobbs abortion opinion did not suggest that the Court should reconsider Loving v. Virginia, the 1967 decision that struck down bans on interracial marriage. (Note that Justice Thomas, who is black, is in an interracial marriage himself—his wife Ginny is white.) Virtually no one suggests that the Loving decision should be overturned, so those provisions in this bill are even more superfluous than the ones involving same-sex marriage.

• While the provision saying that “diverse beliefs are due proper respect” applies to the belief that marriage is the union of a man and a woman, it also applies to those who supported casually discarding that millennia-old definition of marriage. The amendment also says that same-sex couples “deserve to have” the protections of marriage. Anyone who sincerely believes that a same-sex union is not and can never be a real marriage should have difficulty supporting this bill, which explicitly declares the opposite.

Were any attempts made to amend the bill further to strengthen the religious liberty protections?

Yes. Sen. Mike Lee (R-Utah) stated on Twitter that the protections in the existing bill “can only be described as severely anemic.” Lee offered a detailed amendment to strengthen them. Rather than simply stating that this act “shall not be construed” as authorizing federal government discrimination against someone because of their views on marriage, the Lee amendment would actively prohibit such discrimination because a person “speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction” about marriage (either in support of one-man-one-woman marriage, or in support of same-sex marriage).

And the protections under Sen. Lee’s amendment would have extended to far more than just “nonprofit religious organizations … whose principal purpose is the study, practice or advancement of religion,” and would instead extend to almost any person or organization other than a large corporation or someone working for the federal government.

Finally, Sen. Lee’s amendment stated explicitly, “Nothing in this title shall be construed to affirm or otherwise endorse a person’s belief, speech, or action about marriage.”

Unfortunately, Sen. Lee’s amendment was defeated on November 29, receiving only 48 votes on a roll call where it required 60 to overcome a filibuster.

What happens next?

As noted above, there is no current threat to same-sex marriage, so this bill will do nothing at all for same-sex couples. While the bill’s implied declaration that people who oppose same-sex marriage are “decent and honorable” and “are due proper respect” is welcome, the narrow scope of the supposed religious liberty protections that were included in the bill gives little reassurance that those “decent and honorable” people will be consistently protected against government discrimination. And even the limited protections offered in the Respect for Marriage Act are subject to legislative repeal by some future, more radical Congress.

At the moment, the Supreme Court may be poised to offer stronger protections for religious liberty than those being offered by Congress. The court recently heard oral arguments on a case (303 Creative v. Elenis) involving a woman who designs wedding websites, Lorie Smith, who was charged with violating a state anti-discrimination statute because she declined to participate in celebrating same-sex weddings. The Supreme Court is widely expected to rule in her favor—but that is the type of situation that is not addressed at all in the Respect for Marriage Act.