Adm Golub/AP Images for Human Rights Campaign
Participants celebrate at the San Francisco Pride Parade on June 28, 2015, in San Francisco, two days after the Supreme Court’s landmark decision on same-sex marriage.
The Respect for Marriage Act (RFMA), which Congress is on the verge of passing after the Senate moved forward on it last week, takes a grotesquely roundabout approach to the problem it addresses. It is also a great moral achievement.
The impetus was an irresponsible statement by Supreme Court Justice Clarence Thomas in his concurring opinion in the case that reversed Roe v. Wade. Thomas observed that Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage, rested on a rationale similar to Roe. He said he hoped the Court would reverse that, too. This alarmed the more than half a million married same-sex couples in the United States. (Brett Kavanaugh, in a separate concurrence, argued that the abortion decision “does not threaten or cast doubt” on the earlier marriage decision, but understandably not everyone was reassured.) There are 32 states with laws still on the books banning same-sex marriage, laws that would spring back into life if Obergefell were overruled.
The obvious response would be a federal statute codifying Obergefell. But this Court is deeply suspicious of congressional power to address even the most pressing national problems. It is particularly dubious of civil rights laws, even with respect to matters such as voting that Congress is specifically empowered to address. A federal marriage equality law might not be upheld.
So the statute, instead of simply requiring states to issue marriage licenses to same-sex couples, compels them to recognize such marriages performed in other states. If Obergefell were overruled, and some states stopped issuing licenses (as some politicians still advocate), couples in those states would have to travel, get married, and come home. That would be burdensome and insulting. It is an awkward way to protect their marriages. But it is not nearly as bad as having the law treat one’s family as if they were strangers to one another. Their home state would have to recognize the marriage, and so would federal law for all purposes, such as Medicare and Social Security.
Congress’s power here is clear. The Constitution says:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And Congress may by General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (emphasis added)
After a 1993 Hawaii Supreme Court decision made it seem likely that the state would recognize same-sex marriages (in the end, it didn’t), the press fecklessly repeated the claim that the “full faith and credit” clause would require every state to recognize same-sex marriages from other states. That’s wrong, as I explained in my (now thankfully obsolete) 2006 book, Same Sex, Different States: When Same-Sex Marriages Cross State Lines. The clause, as implemented by Congress in a 1790 statute, only meant that a judgment—a final decision of a court that ends a legal case—is to be given the same effect that it would have in the state that issued it. So after you lose a lawsuit, you can’t flee to another state and try to relitigate it. The original state’s judgment must be enforced. But this is true only of judgments, not other official documents. An Alaska fishing license doesn’t work in Michigan.
Congress used its power under the clause in 1996 to pass the Defense of Marriage Act (DOMA), which said that no state had to “give effect to any … judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State … or a right or claim arising from such relationship.” That language was wildly overbroad, affecting not only marriages, but any obligation arising out of a marriage—including financial obligations to spouses and children. After a divorce—or without even bothering to divorce—a same-sex spouse could flee with the family’s assets to another state. There they could marry an opposite-sex spouse without even disclosing to that person the existence of the prior marriage. (Since that marriage would be void in the new state, there would be no legally valid existing marriage to disclose.) These results were insane. Congress surely didn’t intend them. But its intentions in fact were a weird combination of confusion about the law and wild paranoia about gay people.
DOMA also declared that the word “marriage,” wherever it appears in the U.S. Code, “means only a legal union between one man and one woman as husband and wife.” That produced even weirder results. Federal ethics rules barred officials from participating in matters in which their spouses have a financial interest—but not if they were same-sex spouses. It is a federal crime to assault, kidnap, or kill a member of the immediate family of a federal official in order to influence or retaliate against that official—but not if you did that to a same-sex spouse. In United States v. Windsor (2013), the Court had no trouble recognizing this for what it was: a “bare desire to harm a politically unpopular group.” The statute lashed out with no attention at all to the purposes of any of the underlying laws it affects. Windsor struck down the definitional provision of DOMA.
But Windsor didn’t reach the interstate recognition provision, which was not involved in the case. That provision was made irrelevant by Obergefell. But if Obergefell were overruled, it would spring back into life.
RFMA puts a stop to that. It declares that states may not deny full faith and credit to marriages “on the basis of the sex” of the parties, thereby incidentally noticing that discrimination against same-sex couples is sex discrimination.
It also, as part of the deal that secured the Republican support needed to break a Senate filibuster, confirms that nonprofit religious organizations will not have to provide goods, services, or facilities for wedding ceremonies or receptions. It excludes recognition of polygamy. It guarantees that churches that don’t recognize same-sex marriages will not lose their tax-exempt status. None of these were likely to happen, but the religious right was worried about them, and anything that diminishes conflict over this issue is good for the country.
The bill is a sensible response to a deep division among Americans about a fraught moral issue. It wisely declares: “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious premises.” But there is a perspective at work here that is neither decent nor honorable.
Consider again Justice Thomas. He—and Justice Samuel Alito, who has previously joined him in protesting against same-sex marriage—don’t seem to notice any aspect of marriage equality other thanits deployment in popular rhetoric against those who disagree. Alito’s Obergefell dissent (which Thomas joined) claimed that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” They will “risk being labeled as bigots and treated as such by governments, employers, and schools.” More recently, Thomas (joined by Alito) bemoaned “this Court’s cavalier treatment of religion” in Obergefell (even though religion was not even an issue in the case) and complained that recognition “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” (The branding certainly happens, but it is delusional to think it is caused by Obergefell or would stop if that decision were overturned.) They appear to interpret marriage equality as a sort of personal insult. The fact that there are human beings who need the law’s protection is an overlooked detail. Conservative Christians doubtless had an easier time of it when gay people were closeted. But this isn’t about them.
If morality has a core, it is this: There are other people in the world besides you. They matter as much as you do. It is not OK to attack their families to make your life a bit more comfortable. Despite its convoluted operation, RFMA stands for a profound moral principle.
