Freedom to marry remains fettered

Now that the Respect for Marriage Act has cleared Congress with more than expected bipartisan support, it’s nearly as good as established law. President Biden’s signature is a stated certainty.

What’s less certain is how much impact it will have on marriage, as it’s more a mixed bag than the all-clear end to legal marriage discrimination many hope for.

1) It does establish firm and clear federal recognition for same-sex marriages in the U.S., wherever and whenever performed, by repealing the 1996 Defense of Marriage Act.

DOMA prohibited the federal government from recognizing such marriages validly entered under a state’s law. It also allowed states to refuse recognition of same-sex marriages from other states. With DOMA repealed, the federal government must recognize same-sex marriages, and states which don’t issue such licenses must nevertheless recognize those legally performed elsewhere.

2) It does firmly give same-sex marriages the same federal rights and benefits as other marriages, a game changer for married couples treated differently economically, medically, legally, and socially.

3) It does not require states to issue marriage licenses to same-sex couples. That’s an interesting omission, implying it could be up to each state at least under the RFMA.

However, a 2015 Supreme Court decision in Obergefell v. Hodges held that any state refusing to issue a license to a same-sex couple, along with marriage’s “constellation of benefits,” violates the 14th Amendment’s Equal Protection Clause. What a now-conservative majority Supreme Court would do with such an apparent discrepancy, as they will undoubtedly be asked, remains to be seen.

4) It does require states which don’t issue same-sex licenses to recognize such marriages legally performed in another state. Among the federal government’s purviews under the U.S. Constitution are interstate issues and conflicting state laws. This implies a simple solution for such couples, but only if travel is not a problem. Monetary, health, and certain legal issues may practically limit the rights of such couples.

5) It does not require faith-based organizations to perform same-sex marriages if they don’t want to. The RFMA leaves churches and faiths to decide for themselves.

So if states (and faiths) can decide whether or not to allow marriages other than one-man-one-woman, along with all the rights, recognition, and benefits coincident with marriage, what’s the benefit of the RFMA to other couples? Quite a lot.

DOMA’s bar excluded certain married couples from federal recognition in more than 1,000 contexts, from Social Security survivor benefits to the ability to sponsor a spouse for citizenship, equitable tax treatment, employer health insurance, family leave, retirement benefits, divorce and parent-related issues, rights and information in medical crises, veteran and military benefits and so much more. Once in effect, the Respect for Marriage Act will allow all legally married couples to share in the same rights and benefits under federal law.

Yet the waters are still murky. RFMA intentionally stops short of statutorily requiring states to issue marriage licenses to same-sex couples. Yet the seven-year-old Obergefell case, essentially mandating it under a fundamental Constitutional right to marry, is still law. That statutory-case law discrepancy has yet to be resolved, key to the 30-plus states with some limitation on same-sex couples’ rights. If SCOTUS overturns Obergefell one day, individual states will once again be able to refuse to issue such licenses (although the federal government would still treat them as equal under the RFMA).

The complexities of America’s dual legal systems guarantee this story is far from over.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email sholeh@cdapress.com.