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08 December 2022

The Respect For Marriage Act

This is the bill that was ultimately passed by the House and the Senate, which will probably be signed into law today or tomorrow by President Biden. It passed the Senate 61-36 (with the support of 12 Republicans - 24% of the Senate GOP Caucus) and passed the House 258-169 (with the support of 39 Republicans - 18% of the House GOP Caucus). All Democrats who voted on the bill voted in favor of it. Per the Washington Post (linked below):

Seven Republican lawmakers voted no Thursday after supporting the bill in July. Two GOP lawmakers — Rep. Jaime Herrera Beutler (R-Wash.) and Mike Gallagher (R-Wis.) — switched from no to yes. One member, Rep. Burgess Owens (R-Utah), supported the bill in July but voted present on Thursday.

As the Washington Post explains, the Senate Amendment which the House accepted, "clarifies that the federal government would not be authorized to recognize polygamous marriages and confirms that nonprofit religious organizations would not be required to provide “any services, facilities, or goods for the solemnization or celebration of a marriage.”"

The vote underscores a nearly three-decade evolution, from 1996 when President Bill Clinton signed legislation that defined marriage as a union between a man and a woman, to the 2004 election when President George W. Bush used the issue to energize GOP voters, to the Supreme Court’s 2015 decision legalizing same-sex marriage.

The Respect for Marriage Act would not force states to issue marriage licenses to same-sex couples but would require that people be considered married in any state as long as the marriage was valid in the state where it was performed.

The bill also would repeal the 1996 Defense of Marriage Act. In addition to defining marriage as the union of one man and one woman, it allowed states to decline to recognize same-sex marriages performed in other states. That law has remained on the books despite being declared unconstitutional by the Supreme Court’s 2013 ruling in United States v. Windsor and its 2015 ruling in Obergefell v. Hodges, which guaranteed same-sex couples the fundamental right to marry.

It is not precisely the same as the current U.S. Constitutional law protections of interracial and same sex marriages, but it is very similar in practical effect (except, of course, that this statute could be repealed by a future Congress). 

This law also makes it much harder for a court to reach the constitutional issue in order for the U.S. Supreme Court to overrule its existing precedents on point in a future case, while the law is in force.

SECTION 1. SHORT TITLE.

This Act may be cited as the “Respect for Marriage Act”.

SEC. 2. FINDINGS.

Congress finds the following:

SEC. 3. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

Section 1738C of title 28, United States Code, is repealed.

SEC. 4. FULL FAITH AND CREDIT GIVEN TO MARRIAGE EQUALITY.

Chapter 115 of title 28, United States Code, as amended by this Act, is further amended by inserting after section 1738B the following:

§ 1738C. Certain acts, records, and proceedings and the effect thereof

SEC. 5. MARRIAGE RECOGNITION.

Section 7 of title 1, United States Code, is amended to read as follows:

§ 7. Marriage

SEC. 6. NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE.

SEC. 7. STATUTORY PROHIBITION.

SEC. 8. SEVERABILITY.

If any provision of this Act, or any amendment made by this Act, or the application of such provision to any person, entity, government, or circumstance, is held to be unconstitutional, the remainder of this Act, or any amendment made thereby, or the application of such provision to all other persons, entities, governments, or circumstances, shall not be affected thereby.

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