By Ariel Peterson
WASHINGTON, D.C.—The United States House of Representatives this month passed H.R. 8404, the Respect for Marriage Act, which requires the federal government to recognize same-sex and interracial marriages.
Introduced by Representative Jerrold Nadler of New York’s 10th congressional district, H.R. 8404 repeals the Defense of Marriage Act, which was passed in 1996 and includes provisions that have since been ruled unconstitutional by the Supreme Court.
The Defense of Marriage Act offers a definition of marriage to be used for federal purposes, stating that “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.”
Limiting the federal definition of marriage to exclusively a man and a woman results in two major consequences for same-sex couples.
One is the exclusion of same-sex marriages from receiving recognition under federal law.
Without federal recognition, same-sex couples can not enjoy the same benefits of marriage as opposite-sex couples. According to the ACLU, same-sex couples are barred “from federal recognition in over 1,000 contexts, from Social Security survivor benefits to the ability to sponsor a spouse for citizenship to equitable tax treatment.”
This first portion of the Defense of Marriage Act was called into question in a 2010 district court case. Plaintiff Edith Windsor filed suit after paying $363,053 in taxes on her late wife’s estate, taxes she would have received an exemption for had her marriage been federally recognized.
Three years later, the portion was ruled unconstitutional in the United States v. Windsor decision.
The Supreme Court found that the Defense of Marriage Act’s “avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States” and concluded that its definition of marriage is “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
The Defense of Marriage Act also makes explicit that same-sex marriages are not subject to the Full Faith and Credit Clause of the Constitution. As such, states are not required to recognize same-sex marriages performed in other states.
This section of the Act was found unconstitutional in the 2015 landmark Obergefell v. Hodges case.
A number of plaintiffs filed suit in district courts in Kentucky, Michigan, Ohio, and Tennessee, claiming that their right to have their marriages recognized in all states regardless of where they were performed was protected by the Fourteenth Amendment.
The Supreme Court held with the plaintiffs, finding, “The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State” and “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”
As the Defense of Marriage Act has largely been deemed unconstitutional, it is logical that a new law should replace it.
Enter the Respect for Marriage Act.
Addressing the first portion of the Defense of Marriage Act, the Respect for Marriage Act requires, “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.”
On the second portion, the Respect for Marriage Act necessitates that states do not deny “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.”
The Respect for Marriage Act was introduced to the House of Representatives on July 18, 2022, and passed the following day with 267 yeas and 157 nays.
There is a very specific reason for why the Respect for Marriage Act has only recently crossed Senate Majority Leader Chuck Schumer’s desk, given the law it repeals has been unconstitutional for over seven years.
James Esseks of the ACLU writes, “The push behind the Respect for Marriage Act is Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health Organization,” in which Thomas “urged the court to overturn its rulings establishing a fundamental constitutional right to use contraception, the right of same-sex couples to marry, and a right to form intimate sexual relationships with other consenting adults.”
The divisive Dobbs case, decided earlier this year, overruled Roe v. Wade and Planned Parenthood v. Casey and their protections for the right of any person to get an abortion. Writing for the Court, Justice Samuel Alito stated bluntly in Dobbs, “The Constitution does not confer a right to abortion.”
Justice Alito’s draft opinion in the case was leaked in May, a month before the decision was to be released.
In response, Schumer called for a Senate vote on the Women’s Health Protection Act, which was introduced to the House of Representatives in 2021 by Representative Judy Chu of California’s 27th district and a number of cosponsors.
The Women’s Health Protection Act aimed to codify Roe, as its stated purpose was “To protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.”
With only 49 yeas and 51 nays, the Women’s Health Protection Act failed to reach the 60-vote threshold needed to pass the Senate.
Had it passed, the right to receive an abortion would continue to be protected, regardless of the Supreme Court’s decision in Dobbs.
The Respect for Marriage Act received more yea votes in the House of Representatives than the Women’s Health Protection Act, so supporters of LGBTQ+ people hope the Respect for Marriage Act will succeed where the Women’s Health Protection Act failed and codify the right to same-sex marriage, even in the event that Obergefell and Windsor are overruled.
The Respect for Marriage Act was placed on the Senate Legislative Calendar on July 21, 2022. Pundits expect a vote soon.