by Delphine Luneau •
Congress is Taking Decisive, Bipartisan Action to Ensure That Even if Loving, Windsor and Obergefell Were Overturned That the Federal Government Would Not Itself Engage in Discrimination Again
WASHINGTON, D.C. — This week, the U.S. Senate is poised to pass the Respect for Marriage Act (RMA) — a bill that will codify federal marriage equality by guaranteeing the federal rights, benefits and obligations of marriages in the federal code; repeal the discriminatory Defense of Marriage Act (DOMA); and affirm that public acts, records and proceedings should be recognized by all states. By doing so, it protects the status quo that exists following the U.S. Supreme Court’s landmark rulings in Loving v. Virginia (1967), Windsor v. United States (2013) and Obergefell v. Hodges (2015) — decisions that together made equal marriage the law of the land.
The U.S. Constitution grants the states — not Congress — the power to determine who may marry in that state, subject to federal constitutional requirements including equal protection of the laws. In the Respect for Marriage Act, Congress is doing all that it can do to buttress the portions of the Obergefell and Windsor rulings that fall within its purview.
The essential point is this: the Defense of Marriage Act (DOMA) is a discriminatory, offensive law that resulted in too many couples being denied access to the more than 1,100 federal benefits associated with marriage. The Respect for Marriage Act is a bipartisan repudiation of DOMA’s discrimination, and signals that at least for Congress, fights about marriage equality are best left in the dustbin of history. Congress is taking decisive, bipartisan action to repeal this offensive language and ensure that even if Loving, Windsor and Obergefell were overturned that the federal government would not itself engage in discrimination again.
WHAT THE RESPECT FOR MARRIAGE ACT DOES
Repealing the 1990s-era Defense of Marriage Act (DOMA).
Passed in 1996, DOMA discriminated in two important ways. First, Section 2 of DOMA purported to allow states to refuse to recognize valid civil marriages of same-sex couples. Second, Section 3 of the law carved all same-sex couples out of federal statutes, regulations and rulings applicable to all other married people — thereby denying them over 1,100 federal benefits and protections.
DOMA was rendered unenforceable, in two stages, by the Supreme Court’s 2013 Windsor v. United States ruling (which invalidated Section 3) and the 2015 Obergefell v. Hodges ruling (which invalidated Section 2).
DOMA is a stain on our nation, enshrining the belief that LGBTQ+ people were unworthy of marriage equality.
Animus must never be the rationale for adopting laws. The Respect for Marriage Act rights this historical wrong by repealing DOMA and ensuing that legally married same-sex couples are entitled to have their marriages recognized by the federal government.
Establishing that “place of celebration” is the standard of recognition for federal benefits of same-sex marriage.
This provision ensures that the federal government will consider a couple to be married for federal purposes if the couple’s marriage was valid in the state where it was performed.
In the wake of Windsor v. United States, legally married same-sex couples were still unable to avail themselves of all of the federal rights, benefits and obligations of marriage.
Some federal laws look to the place of celebration to determine benefits while others look to the state of domicile. Some statutes are silent. Notably, Social Security is based upon a state of domicile standard.
If marriage equality was ever to cease to be recognized in a given state, same-sex couples and interracial couples who marry in another state – one where same-sex marriages and/or interracial marriages are still recognized – would need to have a federal standard that looks to the state of celebration to retain federal marriage benefits.
If Obergefell or Loving were to fall, and some states decided to no longer marry same-sex or interracial couples, the federal government would continue to recognize marriages legally entered into in other states.
Affirming that public acts, records and proceedings should be recognized by all states.
Under the RMA, marriages, adoption orders, divorce decrees, and other public acts must be honored by all states consistent with the Full Faith and Credit clause of the U.S. Constitution. This adds additional protection for married couples and families.
Legally married couples who experience a denial of their legal rights should be able to seek support from the U.S. Attorney General rather than having to clog the court system litigating incident by incident.
WHAT OBERGEFELL v HODGES (2015) ESTABLISHED + WHAT’S AT STAKE
Broadly speaking, Obergefell simply found all bans on marriage equality to be unconstitutional – and that the fundamental right to marriage is a fundamental right for all. All federal and state bans on marriage equality were immediately rendered invalid.
Although many state bans and the federal Defense of Marriage Act (DOMA) remain on the books, so long as the Obergefell ruling remains in effect, these discriminatory bans cannot legally be enforced.
In his concurring opinion in the Dobbs v. Jackson Supreme Court case this year – which overturned almost 50 years of federal abortion protections in the United States – Justice Clarence Thomas signaled that he would similarly support a repeal of Obergefell. None of the other justices in the majority signed onto Thomas’s concurrence, and in fact they insisted that their rationale for Dobbs did not apply to Obergefell. But having DOMA repealed is important insurance, just in case.
If Obergefell was to be repealed without the RMA in effect, we would return to the pre-2015 reality where same-sex marriages would cease to exist the moment a person crossed into a state that didn’t recognize their marriage as legal; with the RMA in effect, on the other hand, that same person could travel through the country freely and still enjoy the legal status conferred by the state where the marriage took place.
WHAT WINDSOR v UNITED STATES (2013) ESTABLISHED + WHAT’S AT STAKE
The Windsor case challenged the government’s ban on recognizing legally married same-sex couples for federal purposes including social security, immigration, and family and medical leave.
Same-sex couples across the nation came away victorious as Section 3 of DOMA was overturned.
Although marriage equality, at the time of the ruling, had not yet been established throughout the country, couples that had married in states that legalized same-sex marriage were able to enjoy federal marriage benefits.
WHAT LOVING v VIRGINIA (1967) ESTABLISHED + WHAT’S AT STAKE
One of the landmark decisions of the Supreme Court during the Civil Rights era, the Loving decision overturned all state prohibitions on interracial marriage in the United States.
16 states across the U.S. still had bans on interracial marriage on the books at the time of the ruling.
The Loving ruling was one of the precedents cited in the Supreme Court’s Obergefell decision.
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