The Respect for Marriage Act: Living Together Despite Our Deepest Differences
The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage should the Supreme Court overrule 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. 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.
Douglas Laycock et al.,
The Respect for Marriage Act: Living Together Despite Our Deepest DifferencesUniversity of Illinois Law Review (forthcoming)
Available at: https://scholarship.law.missouri.edu/facpubs/1060