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(The Guardian) How exactly would the Respect for Marriage Act (RFMA) work? Slate has the answers in this illuminating piece.
The bill is a two-pronged attempt to preserve existing same-sex marriages and allow new couples of the same gender to continue to marry, even if the supreme court overturns Obergefell v Hodges.
The proposal first does that by getting rid of a federal law targeting same-sex couples, according to Slate: What the RFMA does not do is “codify” Obergefell, as many media outlets have inaccurately reported. So it’s worth delving into the details to understand precisely how this landmark legislation operates. Keep in mind that its central provisions will only become relevant if the Supreme Court overturns its marriage equality decisions. The RFMA will benefit same-sex couples if, and only if, SCOTUS overrules the right to equal marriage. Start with the easy part: The RFMA repeals the Defense of Marriage Act (DOMA), a 1996 law that bars the federal government from recognizing same-sex marriages. It replaces DOMA with a requirement that the federal government recognize any marriage that was “valid in the place where entered into.” So if a same-sex couple obtains a valid marriage license from any state, the federal government must recognize their union.
The second part of the bill requires states to recognize same-sex marriage licenses even if they – in a post-Obergefell world – decide not to issue them: Turn now to the second prong of the bill: Its requirement that every state recognize a valid same-sex marriage. It’s this provision that has upset some progressives, because it does not go as far as Obergefell. In that decision, the Supreme Court directed every state to license same-sex marriages—that is, to issue a marriage certificate to same-sex couples. The RFMA does not codify this component of Obergefell. Instead, it directs every state to recognize every same-sex marriage that “is valid in the State where the marriage was entered into.”
So the RFMA does not force Texas to issue a marriage certificate to a same-sex couple. But it does force Texas to recognize a marriage certificate issued to a same-sex couple by New Mexico. In a post-Obergefell world, a same-sex couple in Texas could drive to New Mexico, obtain a certificate, and force Texas to respect their marriage like any other.
This legislation doesn’t just address same-sex couples, but also interracial marriages, which were prohibited in parts of the United States before a 1967 supreme court decision. The RFMA would ensure those continue to be allowed as well: Finally, the bill applies equally to same-sex marriages and interracial marriages. Since no states have expressed interest in reviving anti-miscegenation laws, this component is also largely symbolic. But it does protect interracial couples if the Supreme Court were to overturn Loving v. Virginia, which was rooted in the same constitutional principles as Obergefell.
The bill is a two-pronged attempt to preserve existing same-sex marriages and allow new couples of the same gender to continue to marry, even if the supreme court overturns Obergefell v Hodges.
The proposal first does that by getting rid of a federal law targeting same-sex couples, according to Slate: What the RFMA does not do is “codify” Obergefell, as many media outlets have inaccurately reported. So it’s worth delving into the details to understand precisely how this landmark legislation operates. Keep in mind that its central provisions will only become relevant if the Supreme Court overturns its marriage equality decisions. The RFMA will benefit same-sex couples if, and only if, SCOTUS overrules the right to equal marriage. Start with the easy part: The RFMA repeals the Defense of Marriage Act (DOMA), a 1996 law that bars the federal government from recognizing same-sex marriages. It replaces DOMA with a requirement that the federal government recognize any marriage that was “valid in the place where entered into.” So if a same-sex couple obtains a valid marriage license from any state, the federal government must recognize their union.
The second part of the bill requires states to recognize same-sex marriage licenses even if they – in a post-Obergefell world – decide not to issue them: Turn now to the second prong of the bill: Its requirement that every state recognize a valid same-sex marriage. It’s this provision that has upset some progressives, because it does not go as far as Obergefell. In that decision, the Supreme Court directed every state to license same-sex marriages—that is, to issue a marriage certificate to same-sex couples. The RFMA does not codify this component of Obergefell. Instead, it directs every state to recognize every same-sex marriage that “is valid in the State where the marriage was entered into.”
So the RFMA does not force Texas to issue a marriage certificate to a same-sex couple. But it does force Texas to recognize a marriage certificate issued to a same-sex couple by New Mexico. In a post-Obergefell world, a same-sex couple in Texas could drive to New Mexico, obtain a certificate, and force Texas to respect their marriage like any other.
This legislation doesn’t just address same-sex couples, but also interracial marriages, which were prohibited in parts of the United States before a 1967 supreme court decision. The RFMA would ensure those continue to be allowed as well: Finally, the bill applies equally to same-sex marriages and interracial marriages. Since no states have expressed interest in reviving anti-miscegenation laws, this component is also largely symbolic. But it does protect interracial couples if the Supreme Court were to overturn Loving v. Virginia, which was rooted in the same constitutional principles as Obergefell.
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