As I write this in late November, the Respect for Marriage Act appears to be headed for passage in the lame-duck session of Congress. It will likely be law by the time this piece appears in print. If not, it will have been a serious missed opportunity. The bill would protect same-sex marriage and protect religious liberty with respect to marriage.
The bill passed a crucial test on November 16, when all fifty Democrats and twelve Republicans voted to open Senate debate. That required sixty votes, and ending debate will also require sixty votes. Once they get that far, actually passing the bill will require only fifty-one votes. All this is according to the arcane rules of the Senate.
The bill would recognize, for all purposes of federal law, any marriage between two people that is valid in the state where the couple was married. And it would require the states to recognize most marriages from sister states. The bill would not enact a federal definition of marriage: the validity of any marriage would still depend on the law of the state where the marriage was licensed and celebrated. Under the bill, no state may refuse to recognize a marriage from a sister state because of the sex (or race, ethnicity, or national origin) of the spouses in the marriage. As long as there are states where same-sex couples can go to get married, their marriages would be recognized throughout the country.
None of this matters as long as same-sex marriage is constitutionally protected. But the Supreme Court recently overruled all its cases recognizing a constitutional right to abortion, and Justice Thomas pointed out that under the Court’s reasoning, all the gay-rights cases should also be overruled. Justice Alito, writing for the majority, responded that abortion is unique and that no other right was implicated.
They were both half right and half wrong. The Court said that there is no constitutional right to choose abortion because abortion is not expressly mentioned in the Constitution, and because there is no long tradition, going back to the nation’s early years, of protecting that choice as a right. Those arguments are equally applicable to same-sex marriage, and that was Justice Thomas’s point.
The Court also said that abortion is unique, because only abortion involves the taking of an unborn human life or—as others see it—a potential life. That was Justice Alito’s point: same-sex marriage is different because no life or potential life is at stake.
Going forward, the Court is free to choose between these two rationales. It could reaffirm the gay-rights cases because same-sex relationships are so different from abortion, or overrule those cases because abortion and same-sex marriage rest on the same foundation—or lack of one—in constitutional text and history.
Especially now that it has seen the political reaction to overruling the right to choose abortion, it seems unlikely that the Court would also overrule the right to same-sex marriage. But no one knows how far the Court’s new conservative majority will go. The Respect for Marriage Act is an insurance policy for same-sex couples: their right to marry will be protected by federal statutory law even if the Supreme Court decides that their rights are no longer protected by federal constitutional law.
In exchange for this insurance policy, the bill also provides protections for religious liberty. First, it includes an express congressional finding that “diverse beliefs about the role of gender in marriage”—including the belief that marriage can be only between a man and a woman—“are held by reasonable and sincere people based on decent and honorable religious or philosophical premises” and that “such people and their diverse beliefs are due proper respect.”