On December 13, 2022, President Biden signed the Respect for Marriage Act (“RMA”) into law. This is big news!
A historic step has been taken on the national level to help protect equal marriage rights in the United States. This new law, while good news, does not do everything needed to fully protect those rights. Read on…
The Respect for Marriage Act, passed by Congress this month and just signed into law by President Biden is now the law of the land. It requires all states to recognize same-sex marriages1 which were valid in the state where they were performed. (There remains a question about whether these same states who may become hostile to same-sex marriage will be required to provide the same rights and benefits of marriage as opposite sex couples enjoy. The law still leaves open the possibility of future challenges of its Constitutionality.)
President Biden signs the Respect for Marriage Act on December 13, 2022
Additionally, the bill codifies into Federal law that same-sex marriages must be recognized under Federal law for all Federal purposes, including things like Federal income, gift, and estate taxes, Medicare, and Social Security, to name a few.
The RMA also repeals the discriminatory 1996 Defense of Marriage Act (“DOMA”), which defined marriage as the union of one man and one woman. The Supreme Court of the United States (“SCOTUS”) had already ruled in 2013 that DOMA’s ban on Federal recognition of same-sex marriages was unconstitutional as violating the Due Process Clause of the Fifth Amendment in its decision in United States v. Windsor. This was followed by SCOTUS’ 2015 landmark decision in Obergefell v. Hodges, which declared all state bans on same-sex marriage unconstitutional as violating the Equal Protection and Substantive Due Process Clauses of the Fourteenth Amendment. However, DOMA was still “on the books” prior to December 13, 2022, and now RMA fully repeals it.
“The rights of all married couples will never truly be safe without the proper protections under Federal law. And that’s why the Respect for Marriage Act is necessary,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said on the Senate floor. “Passing this bill is our chance to send a message to Americans everywhere: No matter who you are, who you love, you deserve dignity and equal treatment under the law. That’s about as American [an] ideal as it comes.”
Essentially, RMA protects against any decisions this conservative SCOTUS might make regarding same-sex marriages in the wake of the Dobbs v. Jackson – Women’s Health Organization decision from this year, which reversed the Court’s long-standing protection on abortion. Were Obergefell to be overturned by SCOTUS, states which choose to ban same-sex marriage would still be required to recognize as valid same-sex marriages performed in states where it is legal and presumably people would be free to move about the country to obtain a same-sex marriage in a state which recognized it even if they resided in a state that did not. If this were to happen, we could go back to the ‘patch-work’ of rights we had after Windsor and before Obergefell where marriage rights and benefits might be required for state law purposes only in states that allowed it but those same marriages would be recognized for Federal law purposes everywhere. For more information about how to navigate that, see my book, Whether to Wed: A Legal and Tax Guide for Gay and Lesbian Couples (2014).
While the RMA does not go as far as some politicians and political pundits claim – notably, it does not enshrine the holding of Obergefell guaranteeing same-sex couples the fundamental right to marry into law – it is nonetheless an important step for the codification of the rights of same-sex couples in the United States. It essentially codifies the ruling in Windsor.
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1 In fact, the new law prohibits states from recognizing valid marriages from another state based on sex, race, or religion –so—this new law also provides additional protections for interracial marriages.