This week, the Senate advanced the Respect for Marriage Act (RMA). The law tries to balance the unquestionable goodness of traditional marriage with America’s changing views on same-sex relationships. Some conservatives will undoubtedly treat the act as a loss. But others will take the view that, in a morally pluralistic society, a few concessions yield a win for the common good. I’m one of them.
The history of RMA goes back to late June, when the Supreme Court’s Dobbs decision overruled its predecessor Roe v. Wade. Buried in a concurring opinion by justice Clarence Thomas was his suggestion that the court make a clean sweep of things by reconsidering the 2015 Obergefell decision finding a constitutional right to gay marriage. That comment unsettled the tens of thousands of Americans who had entered same-sex unions, which in conservative states are dependent on Obergefell remaining good law.
In response, the US House passed the Respect for Marriage Act, or H.R. 8404. But it failed to safeguard religious liberty for churches, universities, and other institutions that believe in traditional marriage.
Rather than just say no to RMA, a small collective of faith groups moved quickly in the Senate to see if the act could be brought into balance. A few senators from both parties who were keen on doing just that helped. After adding in a measure of religious liberty protections, the Senate substitute of the House bill passed the higher chamber earlier this week, 62–37.
In order of significance, here’s what you need to know about the Respect for Marriage Act:
Section 6(b) of RMA recognizes that religious nonprofits and their personnel have a statutory right to decline any involvement with a marriage solemnization or celebration—including a same-sex one. This federal right would preempt any state or local law to the contrary. It means clergy can refuse to officiate a gay wedding. A church can decline to be the venue for these unions. A Christian college can deny use of its chapel for the same reason, and a Christian summer camp can refuse use of its lake and nearby pavilion, as well.
This section of the act only deals with nonprofits and therefore doesn’t address ongoing litigation over for-profit Christian wedding vendors—photographers, bakers, florists, dressmakers, and others. However, RMA doesn’t harm wedding vendors. It’s simply silent and leaves the matter for resolution in the courts. (One of these wedding vendor cases—303 Creative, LLC v. Elenis—is about to be argued before the US Supreme Court.)
Section 6(a) of RMA states that nothing in the act diminishes any existing federal right to freedom of religion or protection of conscience. For example, the Religious Freedom Restoration Act of 1993 goes untouched by RMA, and so do many religious exemptions in civil rights legislation.
Section 3 repeals the 1996 Defense of Marriage Act (DOMA), which prohibited federal recognition of same-sex marriage. But the Supreme Court already struck down DOMA in 2013, so this part of RMA does nothing except remove an already-dead law from the US Code.
Sections 4 and 5 state that if a marriage is valid when entered into in one state, that same union (including a same-sex one) must be recognized as valid in all other states. But this too is already the law. The US Constitution requires that “full faith and credit” be given to the public acts and records of one state to its sister states.
What’s new here: Section 4 goes on to make that right enforceable by the attorney general against state officials in federal court. However, by way of Obergefell, that right is already enforceable in court by the injured couple.
Section 5 provides that wherever federal law takes into account marital status, the government will regard as valid any marriage that’s regarded as valid by one of the states. But here again, this right is already the law, as declared by president Barack Obama shortly after the Supreme Court’s decision in Obergefell. Now it’s the law according to RMA.
What’s new here: Now that RMA has the legislative backing of Congress, no Supreme Court reversal of Obergefell would dislodge the validity of a same-sex marriage or the government benefits, tax breaks, and other gains that go with it. But in my view, it’s very unlikely, anyway, that Obergefell will ever get overturned.
Finally, Section 7 makes it clear that marriages addressed in the act cannot be polygamous. This same part of RMA also issues a useful reminder to all parties of the Act’s limited scope. It reassures married couples (including same-sex ones) of income tax breaks and social security benefits that flow from their marital status. But RMA has no impact on federal law “not arising from a marriage.”
Does a religious organization’s tax-exempt status with the IRS arise from a marriage? No. Does a religious school’s accreditation arise from a marriage? No. Does a religious employer’s exemption from civil rights employment antidiscrimination statutes arise from a marriage? Again, the answer is no.
Churches, Christian colleges, K-12 religious schools, and faith-based social service providers can take comfort in these boundary lines.
All in all, RMA is a modest but good day’s work. It shows that religious liberty champions and LGBT advocates can work together for the common good. It says to the original House bill, “If a bill is about us, it has to be with us.” And it shows that Congress can still legislate, not just be a gaggle of egos who go to Washington to perform but never fix.
Carl H. Esbeck is the R. B. Price Professor of Law Emeritus at the University of Missouri.
Speaking Out is Christianity Today’s guest opinion column and (unlike an editorial) does not necessarily represent the opinion of the publication.
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