Understanding The Respect for Marriage Act

In December 2022, President Biden signed into law the Respect for Marriage Act (RFMA), legislation that redefines marriage under federal law and protects interracial and same–sex marriages against discriminatory treatment by state actors. This post discusses the legal backstory behind RFMA, what it does and does not do, and its implications for religious organizations.

DOMA, Dobbs, & Due Process–The Backstory of RFMA

Although RFMA had previously been introduced in Congress multiple times, it had failed to gain adequate support. To appreciate the reasons why Congress passed RFMA in 2022, it is important to understand the contextual timeline of U.S. Supreme Court decisions that led to its enactment:

• Loving v. Virginia (1967)–State bans on interracial marriage violate the Due Process Clause of the Fourteenth Amendment.
• Roe v. Wade (1973)–The Due Process Clause of the Fourteenth Amendment protects the right to have an abortion.
• DOMA (1996)–Congress passes the Defense of Marriage Act (DOMA), which defined federally–recognized marriages as those between one man and one woman.
• United States v. Windsor (2013)–DOMA’s denial of federal recognition to same–sex marriages violates the Due Process Clause of the Fifth Amendment. DOMA continues to exist as a federal statute after the Windsor decision, but is not enforceable.
• Obergefell v. Hodges (2015)–State bans on same–sex marriage violate the Due Process Clause of the Fourteenth Amendment.
• Dobbs v. Jackson Women’s Health Organization (2022)–Abortion is not protected by the Fourteenth Amendment. Roe is overruled.

The catalyst for the passage of RFMA in 2022 was the Dobbs decision. But why would a decision about abortion rights prompt legislative action to protect same–sex and interracial marriage? The answer is that abortion rights under Roe and marriage rights under Loving, Windsor, and Obergefell were cut from the same constitutional cloth.

The constitutional theory that underlay the ruling in Roe was that of “substantive due process,” the notion that certain individual rights, although not specifically stated in the text of the Constitution, are “fundamental” and therefore are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.¹ The same substantive due process theory underlay the Supreme Court’s decisions in Loving, Windsor, and Obergefell. According to those decisions, marriage, although not enumerated in the Constitution, is a fundamental right that is protected by Due Process and cannot be denied by the government.

The Dobbs decision overruled Roe and clarified the scope of substantive due process, ruling that the only unenumerated rights protected by Constitution are those which are “deeply rooted in history and tradition.” The right to an abortion, the Court found, was not deeply rooted in history or tradition and was therefore not constitutionally protected. Justice Clarence Thomas authored a concurring opinion in Dobbs in which he raised the issue of whether the Court’s other substantive due process decisions might also need to be reconsidered, including Obergefell.

LGBTQ advocates and others expressed concern over the Dobbs decision, contending that it was the prelude to the Court overruling Obergefell and maybe even Loving, and to a possible return to state bans on same–sex and interracial marriage. This concern coincided with an increase in public approval of same–sex marriage. Thus, RFMA’s sponsors lauded the bill as a way to protect marriage rights by codifying them by statute.² The bill had the sufficient impetus and approval to pass both houses of Congress by sizable margins in 2022.

Nuts & Bolts: What RFMA Does and Does Not Do

RFMA does two things: First, it formally repeals DOMA, which defined marriage as “a legal union between one man and one woman as husband and wife” and rearticulates the definition of federally–recognized marriage as a union “between 2 individuals” that is otherwise valid under the current law of the state in which it was solemnized. Although DOMA was struck down by the Supreme Court in the 2013 Windsor decision and has not been enforced since, RFMA formally removes DOMA’s heterosexual limitation of federally–recognized marriage from the statute books.

Second, RFMA forbids “persons acting under color of State law” from discriminating against or denying recognition to any marriage “on the basis of the sex, race, ethnicity, or national origin” of the marriage partners. RFMA allows the U.S. Attorney General to enforce these prohibitions. It also allows private individuals to sue state actors who discriminate against such marriages.

It is also important to identify what RFMA does not do. It does not apply to, regulate, or create liability for private individuals or organizations. It only applies to “persons acting under color of State law.” The federal courts have defined and applied this exact phrase in other statutes, and it is clearly established that those “acting under color of State law” are government entities and government officials. The law does not apply to private individuals or organizations.

Belt & Suspenders: RFMA’s Protections for Religious Liberty

Despite the fact that the RFMA only applies to state actors and does not create liability for private persons, it nevertheless contains multiple layers of protections for religious freedom.

First, RFMA provides that it does not “diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.” The protections alluded to in this subsection include the Religious Freedom Restoration Act, a federal statute that subjects all federal burdens on religious exercise (including any burdens resulting from RFMA) to the highest level of judicial scrutiny. This provision also affirms RFMA’s compliance with the Free Exercise Clause of the First Amendment, which protects religious belief and practice against unjustified government infringement on the state, local, and federal levels.

Second, RFMA provides that “nonprofit religious organizations . . . shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” This provision arguably provides greater immunity for religious organizations than they enjoyed prior to RFMA and gives them an express statutory exemption from laws that could require such organizations to accommodate or celebrate same–sex unions.

Third, RFMA provides that it does not operate to deny or modify any non–marriage right or status, including tax–exempt status, certifications, accreditations, or licenses. This means that religious schools and nonprofits have no danger of their tax–exempt status, federal funding, or federal contracts being revoked by operation of RFMA if they operate with traditional convictions on marriage.³

In light of these protections under RFMA itself and other law, as well as RFMA’s non–application to private actors, religious organizations may remain largely unaffected by RFMA. Nevertheless, these organizations may wish to take steps that include reviewing and assessing corporate documents, policies, structure governance and employment, and ensure compliance with all applicable laws.

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¹ The Due Process Clause of the Fifth Amendment applies to the federal government while the Due Process Clause of the Fourteenth Amendment applies to state and local governments. Both provisions provide that no person shall be deprived of life, liberty, or property, without “due process of law.”

² If Obergefell were overruled, constitutional challenges to RFMA may exist with respect to whether it exceeds Congress’ enforcement power under Section 5 of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507 (1997).

³ Under other federal laws, private schools that discriminate on the basis of race are subject to revocation of their tax–exempt status. RFMA clarifies that this threat does not exist for schools or other religious organizations that operate with a commitment to heterosexual marriage.

Featured Image by Rebecca Sidebotham.