By Dan Bruner, Benjamin Brooks, and Sara Mar

On the afternoon of Dec. 13, 2022, in the presence of thousands of advocates and community members, President Joseph Biden signed the Respect for Marriage Act, which had been passed by Congress thanks to the efforts of many advocates around the country. The law codifies in federal statutory law the right to marry free from discrimination based on sexual orientation, race, ethnicity and national origin. This right was established in the landmark Supreme Court decisions of Loving v. Virginia, which struck down state laws criminalizing inter-racial marriages, and Obergefell v. Hodges and United States v. Windsor, which invalidated state laws and a federal statute that prohibited same-sex marriages.

The Respect for Marriage Act is a major victory in at least two ways:

• It was passed with bipartisan support, including 12 Republican Senators and many Republican Members of the House. This achievement highlights the growing public support for same-sex marriage, now accepted by a majority of Republicans as well as Independents and Democrats.

• It repealed the federal “Defense of Marriage Act” – the federal law enacted in the 1990s which at the time had support from many Democrats and effectively excluded same-sex marriages from any federal recognition or benefits. The Supreme Court declared the Defense of Marriage Act unconstitutional in Windsor, but it has never been removed from the books.

Because the Respect for Marriage Act’s implications for same-sex marriage are somewhat misunderstood, it is important to clearly explain what the new law does, and what it does not do.

Same-sex marriage is protected throughout the U.S., and at the Federal level, by Supreme Court decisions that are still the law of the land. The Respect for Marriage Act will provide important protections only if the Supreme Court overrules its decision in Obergefell or in Windsor. In its recent decision overturning the Constitutional right to abortion, Justice Thomas’ concurring opinion (not joined by any other Justice) suggested that Obergefell and other precedents establishing Due Process rights should be revisited. His suggestion was expressly rejected by Justice Kavanaugh, and the majority opinion also stated that its decision on abortion did not affect the rights recognized in other decisions. Many legal experts think it unlikely that the Supreme Court would overrule the right to same-sex marriage for a number of reasons, including strong public support for this right. In addition, there are powerful Equal Protection arguments for same-sex marriage, which are different from the Due Process analysis that Justice Thomas rejects.

The Respect for Marriage Act does not prevent states from once again restricting marriage to different-sex couples. If the Supreme Court were to overrule Obergefell and/or Windsor, and hold that same-sex marriage is not Constitutionally protected, it is likely that non-heterosexual marriage would become legally prohibited again in some, and perhaps many, states. Some states still have discriminatory anti-gay marriage laws on their books, which would take legal effect if the Supreme Court overrules Obergefell. Other hostile states might attempt to pass new discriminatory marriage laws, though such efforts might fail given the substantial shifts in public opinion in recent years.

If a state law prohibiting same-sex marriage becomes effective, what would happen to couples who were already legally married in that state? The answer is not clear. However, there are strong legal arguments against retroactively invalidating a legal marriage, as well as considerations of basic fairness that might protect such marriages.

If the Supreme Court were to return us to the pre-Obergefell world – one that consists of a patchwork of state recognition and non-recognition of same-sex marriage – the Respect for Marriage Act would provide the following very important protections for same-sex couples:

• Married individuals and couples would be entitled to all marriage-related benefits (and burdens) under federal laws and programs. The new law repealed the infamous “Defense of Marriage Act,” and includes clear provisions that any marriage that is valid in the state or territory (or foreign country) when and where it was performed is entitled to full recognition under federal law.

• While the law does not require a state to allow same-sex marriages under its own marriage laws, it does require states to give “full faith and credit” to marriages legally performed in another state, without discrimination based on the sex, race, ethnicity or national origin of the couple. This is a major win – it means, for instance, that a same-sex couple in a state that does not allow them to marry could travel to another state, get legally married there, and be entitled to be treated as a legally married couple when they return home. It also means that legally married couples can travel to other states, including states hostile to LGBTQ people, and still be treated as married.

It is important to note that this provision applies to state governments and to persons “acting under color of state law .” – which means a public official or other person claiming to be exercising their legally-authorized duties, even if falsely. It is not clear how the law would apply to “purely private” discrimination – for instance, discrimination against a same-sex married couple by a private employer, school, health care provider, hotel or vacation site. There are protections under federal and some state civil rights laws against such discrimination. At the federal level these protections include Title VII (employment), Title IX (education), Section 1557 of the affordable Care Act (health care and health insurance), and federal housing, financial and credit laws – all of which are in effect even if the Equality Act does not become law.

• For married people who encounter discrimination in another state, the new law creates the right for individuals or the Attorney General to bring a lawsuit in federal court.

The new law does contain a religious exception. A religious exception in a civil rights law is cause for concern – and not only for LGBTQ people. Such an exception undermines the sense that civil rights arise from shared agreements about how we can expect to be treated, regardless of religious belief. The law protects interracial, inter-ethnic, and transnational marriages as well as same-sex marriages, and there are – sadly – too many people who object to such marriages for allegedly religious reasons. Anti-Black racism and white supremacy were, after all, widespread Christian doctrines until only a few decades ago. At this time, it is same-sex marriages – and LGBTQ people generally – who are attracting the most allegedly religious-based objections, so it is important for our community to understand what the law’s religious exception actually says.

• The statute says that it has no effect on a claim of religious/conscience rights under the First Amendment or other federal laws. This provision only applies to federal, not state, religious/conscience protection laws – and the most important federal religious rights law, the Religious Freedom Restoration Act, does not apply to the states.

• The law also provides an exception for nonprofit, religious-based organizations, including religious-based educational and social service organizations. However, the exception is only for “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage (emphasis added).” Therefore, the exception does not seem to apply to goods and services that aren’t part of a wedding. For instance, it would not seem to apply to discrimination against a same-sex married couple seeking goods or services after their marriage, such as purchasing a home or receiving fertility treatments at a private clinic.

The new law does not apply, one way or the other, to relationships outside marriage. There are many legal strategies available to non-married couples, and persons in non-traditional relationships, to protect their rights and wishes. Whitman-Walker Legal Services can provide information on these resources.

In conclusion, we congratulate the 117th Congress and President Biden on enacting the Respect for Marriage Act. At a time when the rights of LGBTQI people are being attacked by random acts of violence inflamed by dangerous and hateful rhetoric, this law reminds all of America that same-sex and interracial couples are worthy of the rights and protections of marriage.

As we take time to celebrate this win, Whitman-Walker and our partners across the country are committed to continuing to fight for laws that promote the health and well-being of communities of color and LGBTQ+ communities.