The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage if the Supreme Court overrules Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.
The Act requires every state to recognize same-sex marriages performed in other states. If Obergefell were overruled, Congress would have no authority to require each state to license same-sex marriages within its borders. By invoking the Full Faith and Credit Clause, Congress did all that it could for same-sex couples.
The Act protects religious liberty with congressional findings, rules of construction, modest new substantive protections, and a limitation on the Act’s reach: only persons acting under color of state law are required to recognize sister-state marriages. The Act specifically addresses the fear that conservative religious entities could lose their federal tax-exempt status.
The Act is a model for pluralistic approaches that protect both sides in the culture wars. State legislatures have passed many gay-rights bills with protections for religious liberty. But neither side has been able to pass gay-rights bills without such protections, or absolute religious liberty bills with no allowance for gay and lesbian rights. The Respect for Marriage Act is an encouraging return to the practice of protecting liberty for all Americans—both the LGBTQ community and the conservative religious community.
* Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia, and Alice McKean Young Regents Chair in Law Emeritus, University of Texas.
** James L. Oberstar Professor of Law and Public Policy, University of St. Thomas (Minnesota).
*** R.B. Price Professor Emeritus and Isabella Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri.
**** Mildred Van Voorhis Jones Chair in Law, University of Illinois. The authors are grateful to Alexander Dushku, R. Shawn Gunnarson, Meera Kypta, and Tim Schultz for informed advice and assistance with this Article, and to Jacob Smith at Virginia for research assistance.
The authors provided a letter to senators analyzing the religious liberty provisions of the near-final version of the Respect for Marriage Act and concluded that those protections were “meaningful and important even if not comprehensive.” See Letter to Hon. Susan Collins and Hon. Tammy Baldwin from Douglas Laycock, Thomas C. Berg, Carl H. Esbeck, and Robin Fretwell Wilson, Nov. 16, 2022. The letter is reprinted at 168 CONG. REC. 6720–21 (daily ed. Nov. 16, 2022); the original is available, at least for now, at https://www.collins.senate.gov/imo/media/doc/rma_letter_from_legal_scholars.pdf [https://perma.cc/AC74-FNEB]. This Article expands greatly on that assessment of the religious liberty provisions and adds analysis of the statute’s provisions on marriage recognition.
The full text of this Article is available to download as a PDF.