On December 13, 2022, Congress passed and President Biden signed the Respect for Marriage Act. Among other things, the new law guarantees federal benefits for same-sex marriage and requires states to recognize same-sex marriages performed in other states.
Why the need for the Respect for Marriage Act?
Many fear that the 2022 Supreme Court decision in Dobbs vs. Jackson Women’s Health Organization, which ended constitutionally protected access to abortion, will impact marriage equality. The concern arises, in part, from Justice Clarence Thomas’ concurring opinion in which he explicitly stated that Obergefell v. Hodges, which extended marriage equality nationwide, should be overruled. Passage of the Respect for Marriage Act reinforces some of the constitutional protections guaranteed by the Obergefell decision and other Supreme Court rulings protecting access to marriage. Thus, even if Justice Thomas had his way, some (though not all) protections for same-sex marriage remain in place.
The new law codifies constitutional protections from three United States Supreme Court rulings, Loving v. Virginia, 388 U.S. 1 (1967), Windsor v. United States, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015).
What do the Obergefell v. Hodges and Windsor v. United States decisions have to do with same-sex marriage?
Together these two United States Supreme Court rulings provided nationwide equal access to marriage to same-sex couples on the same terms as opposite sex couples.
In 1996, Congress passed and then-President Bill Clinton signed the Defense of Marriage Act (DOMA). Among other things, this law prohibited federal recognition of same-sex marriages and allowed states to individually prohibit recognition of same-sex marriages performed elsewhere. Though at the time the law passed same-sex marriage was not available in any state, this law intended to undercut any potential to recognize such marriages. As a result, once states began extending marriage equality to same-sex couples, these marriages were not treated in the same manner as heterosexual marriages in that lesbian and gay couples could not access any of the numerous federal marriage rights and benefits. Nor were other states require to recognize – and, indeed, many did not – marriage between same-sex couples.
This began to shift in 2013 when the United States Supreme Court found unconstitutional the DOMA provision which prohibited the extension of federal benefits to same-sex couples. Then in a separate decision, in 2015, the United States Supreme Court struck down the remaining provision of DOMA, requiring states to recognize same-sex marriage performed elsewhere. Additionally, the Supreme Courtrequired all states to recognize and extend marriage rights and benefits to same-sex couples. The 2013 and 2015 decisions are United States v. Windsor and Obergefell v. Hodges.
The Respect for Marriage Act, enacted into federal law in December 2022, essentially codifies portions of the Windsor and Obergefell decisions by defining marriage for the purpose of federal law to include same and opposite sex couples. The Act further requires states to extend full faith and credit to marriages performed in other states regardless of race, ethnicity, national origin, or sex.