What the “Respect for Marriage Act” Does (and Doesn’t Do)
“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.”
H.R. 8404- 117th Congress (2021-2022),
The Respect for Marriage Act (RFMA), signed by President Biden on December 13, 2022, became one of only a few federal laws expressly protecting the rights of LGBTQ Americans. Although it represents a significant step forward in terms of unprecedented bipartisan support for the law allowing it to pass both houses of Congress, the law itself does not prohibit states from enacting and/or continuing state law bans on same-sex marriage.
The Origins of the Respect for Marriage Act
Importantly, the legality of same-sex marriage is still determined by the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, which found that same-sex marriage is constitutionally protected pursuant to the 14th Amendment’s Equal Protection Clause. However, as a result of concern about the Supreme Court’s current six-justice conservative majority, as well as from the High Court’s decision to over-turn Roe v. Wade, the Respect for Marriage Act is intended to provide a federal statutory safeguard for same-sex marriage. The Respect for Marriage Act was introduced in the House of Representatives to bolster marriage rights after the Supreme Court's Dobbs v. Jackson decision overturning 50 years of established precedent. In his concurring opinion in Dobbs, Justice Clarence Thomas noted that, similar to Roe, the decision in Obergefell was based on rights conferred through substantive due process, suggesting that both decisions suffered from the same flawed reasoning.
What the Act Does and Doesn’t Do
The Respect for Marriage Act repeals the Defense of Marriage Act (DOMA), the 1996 law that prohibited the federal government from recognizing same-sex marriages in over 1000 contexts (social security benefits and citizenship, for example), and allowed states to refuse to recognize same-sex marriages performed in other states.
If Obergefell were overturned, the legality of same-sex marriages would be governed by state law, and currently the majority of states, including Colorado, prohibit it. The Respect for Marriage Act would not require those states to allow same-sex marriages but it requires all states to recognize same-sex as well as inter-racial marriages performed in other states and federally recognizes these marriages. The Act states that “no person acting under color of State law” can 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.”
In order to gain the bipartisan support necessary to pass the Senate, initial versions of the RFMA were amended to ensure that nonprofit religious groups are not required to perform same-sex marriages. But the Act goes further to expressly provide that nothing in the text of the law may provide a basis for revoking the tax exemptions claimed by many non-profit religious entities who elect not to recognize same-sex marriage.
The specific impact of the Respect for Marriage Act on same-sex couples and their families if Obergefell were to be overturned would vary based on state law. However, the primary limitation of the Act is rooted in this deference to states; in theory, every state could decide to cease granting marriage licenses to same-sex couples and statutes limiting marriage to opposite sex couples still ‘on the books’ in some states could be valid again. The Act does ensure that valid existing marriages must be recognized regardless of an individual states’ laws concerning same-sex marriage. But it does not protect against a scenario in which numerous states are compelled to pass legislation banning same-sex marriage. If the Supreme Court were to overturn Obergefell v. Hodges, the Respect for Marriage Act would not prohibit any state from refusing to issue marriage licenses to same-sex couples wanting to avail themselves of the legal benefits of marriage.
Nonetheless, the law is hailed overall as a significant advancement for civil liberty protection by progressives and advocates of LQBTQ rights, and is also considered a success by some supporters of religious liberty. In contrast, the Equality Act, a bill that narrowly passed in the House in 2021 but failed in the Senate, ultimately could not garner enough bipartisan support in part because of more deliberate restrictions on religious liberty exemptions.
Colorado’s Statutory and Constitutional Ban on Same-Sex Marriage
Although same-sex couples in Colorado have enjoyed the same rights regarding marriage as opposite sex couples since 2014, there is nothing in the Respect for Marriage Act that requires Colorado to reconcile the current statutory and constitutional bans on same-sex marriage that were invalidated with the Obergefell decision. A series of Colorado state court and 10th Circuit (federal appellate court) decisions in 2014 struck down constitutional bans on same-sex marriage, less than a year before the U.S. Supreme Court decided Obergefell v. Hodges. However, Colorado’s constitution still does not recognize same-sex marriage, as a result of Amendment 43 which was passed by voters in 2006.
Additionally, Colorado statutes currently define marriage as a legal union between one man and one woman for the purpose of the state’s laws relating to marital status. Despite the court decisions invalidating them, Colorado statutes still provide that, for a marriage to be valid under Colorado law, it must be: (1) between a man and a woman; (2) licensed, solemnized and registered according to established procedures. Colorado also recognizes common law marriage between a man and a woman who hold themselves out as married. Subsequent Colorado Supreme Court decisions have found that same-sex couples may also establish a common law marriage based on being afforded the same marriage rights as opposite-sex couples after Obergefell.
In order to repeal Amendment 43, a 55% threshold of Colorado voters would be necessary. Advocates are hopeful that in the years since Amendment 43 was passed, broad support for same-sex marriage has increased substantially, such that it is largely accepted as just and necessary even by those who may have been resistant to it seventeen years ago. While the RFMA would protect existing same-sex marriages in Colorado in the event of a Supreme Court decision striking down the constitutionally-protected right to marry, Colorado voters will potentially be tasked with preserving the stability of current marriage rights in Colorado and guaranteeing the right to marry for all adults in the future.
