The Respect for Marriage Act Is Historic
In an era of hyperpartisan polarization, the law recognizing same-sex marriage is a much-needed victory for pluralism, moderation, and compromise.
You may have heard that the Respect for Marriage Act, which the Senate approved on November 29 and which is overwhelmingly likely to pass the House and be signed into law by President Biden, is a modest measure. After all, it merely tweaks the law to insure against something that probably won’t happen anyway; namely, the Supreme Court overturning same-sex marriage. “The bill is really very narrow,” Senator Rob Portman, a Republican supporter of the measure, said. Which is true. So you might not be very excited about it.
But something else is also true: the Respect for Marriage Act is a triumph that marks a turning point for gay and lesbian Americans, a breakthrough for religious liberty, and a pathway out of the culture wars. You should be very excited.
How can both perspectives be accurate? One is strictly legal. The other takes politics and culture into account.
On the first, strictly legal score, the Respect for Marriage Act is undramatic. It requires federal and state officials to recognize same-sex marriages that are licensed by any state. That is hardly revolutionary, because the federal government and every state already recognize same-sex marriage, as is required by the Supreme Court’s 2015 ruling in Obergefell v. Hodges. Also, the act does not mandate or prohibit any private conduct. No one’s life will be changed unless, at some point in the future, the Supreme Court changes its mind.
The act balances its hypothetical protection for same-sex marriages with equally hypothetical reassurance that the federal government will not use gay marriage to browbeat religious objectors. It forbids the federal government from penalizing religious organizations that refuse to solemnize or celebrate same-sex marriages, which the Constitution’s First Amendment probably does anyway. It also forbids the government from treating opposition to same-sex marriages as grounds to withhold benefits like contracts, licenses, grants, and tax exemptions for charities and nonprofits. Again, because the federal government is not actually doing those things, the act does not change anyone’s life. “The provisions, taken together, roughly preserve the legal status quo,” writes David French, a lawyer and religious-liberty advocate.
Are you yawning? Well, don’t. As underwhelming as the act may seem legally, from the perspective of culture and politics, it is a watershed. For gay and lesbian Americans, it represents the successful end of a 50-year struggle for marriage equality, our single most fundamental and transformative cause. For people and organizations of faith, it represents the biggest advance in religious liberty since the Religious Freedom Restoration Act (RFRA), a 1993 law that requires the government to meet a higher-than-normal standard in regulating religious organizations. In fact, in its cultural and political importance, the Respect for Marriage Act surpasses RFRA.
Same-sex marriage is in no imminent peril. More than 70 percent of the public supports marriage equality, according to a June Gallup poll.
Still, Obergefell rests on a constitutional doctrine known as substantive due process, which is a bone in the throat of conservative jurists. This past June, in his concurrence in the Dobbs abortion case, Associate Justice Clarence Thomas posited that the Court should reconsider all of its holdings based on substantive due process—including gay marriage. He seemed to invite litigation aiming to overturn Obergefell, as well as state efforts to undermine marriage equality with exceptions, limits, and other marks of second-class status.
House Democrats responded with the original version of the 2022 Respect for Marriage Act. It simply required the federal government and the states to respect same-sex marriages entered into in any state. If Obergefell were to be struck down, a state could decline to issue same-sex marriage licenses, but gay couples could still obtain valid marriage licenses in another state. To everyone’s surprise, the House bill passed with 47 Republican votes. The trouble was that it was dead on arrival in the Senate, where Republicans would filibuster it.
By the standard D.C. script, that would have been that. Instead, however, the Senate performed an improbable rescue that transformed the bill and elevated its significance. A bit of backstory helps in understanding how.
In 2008, the Church of Jesus Christ of Latter-Day Saints intervened in the campaign to defeat marriage equality in a California referendum, Proposition 8. The blowback was so intense that the Church had a rethink. In Utah, the Church and its secular allies opened lines of communication with the LGBT rights community. After years of quiet talks and trust-building, a minor miracle occurred: in 2015, LGBT rights advocates, Church leaders, and bipartisan state legislators announced what became known as the Utah Compromise, a state law that extended antidiscrimination protections to LGBT Utahns while simultaneously providing targeted exemptions for religious organizations, nonprofits, and schools. The result was to alter not just the state’s law but also its culture. “In every possible way, Utah is now a safer and more welcoming state for the LGBTQ community,” Troy Williams, the head of Equality Utah, told me last year.
With Utah as inspiration, a coalition of strange bedfellows devised a federal compromise. Led by the American Unity Fund, a center-right LGBT civil rights group, and the 1st Amendment Partnership, a religious-liberty group, participants included the Church of Jesus Christ of Latter-Day Saints, the Council for Christian Colleges and Universities, the National Association of Evangelicals, the Institutional Religious Freedom Alliance, the Orthodox Union, and the Seventh-day Adventist Church. These were groups that opposed same-sex marriage theologically but, provided they could still go about their religious business, favored a national law protecting LGBT individuals and couples from discrimination. They developed a federal compromise bill, the Fairness for All Act, which emulated Utah’s coupling of LGBT antidiscrimination protections with targeted religious exemptions.
It went nowhere. Democrats and LGBT activists preferred an alternative antidiscrimination bill, the Equality Act, which protected sexual minorities but omitted the religious exemptions. The Equality Act passed the House but, lacking religious support, was unpassable in the more conservative Senate. Efforts at a gay-religious compromise seemed to have hit a brick wall.
There was a gap in that wall, however. With the support of the Fairness for All group, a handful of Senators, led by Democrat Tammy Baldwin and Republican Susan Collins, had been working quietly on their own version of legislation combining LGBT protections with religious exemptions. They never got far enough to introduce a bill, but when the Respect for Marriage Act came over from the House in July, they and the Fairness for All coalition saw an opportunity: adding religious-freedom protections might attract enough Republican votes to pass.
Thanks to relationships and knowledge built over almost a decade, “they weren’t starting from zero,” Tyler Deaton, a lobbyist for the American Unity Fund, told me. “It was a mature conversation from the get-go, because it wasn’t a blank slate.” On November 29, the resulting compromise passed the Senate with 61 votes, including 12 Republicans.
So how do we judge the final product? For gay and lesbian Americans, the Respect for Marriage Act does more than backstop against a Supreme Court reversal; it gives our marriages the political and cultural legitimacy which, in a democratic republic, only legislative approval can provide. Our opponents can no longer deride our marriages as the pet project of five berobed activists who bent the Constitution to create a right that the Founders never imagined and Congress never approved. We are forever out from under the cloud that shadowed and ultimately undid abortion rights.
Just as important, the act passed with not just a handful of Republican votes but with many. In fact, Republican support was the decisive factor. Even though, according to the Gallup poll, 55 percent of Republicans now favor same-sex marriage, many of the rest remain die-hard opponents. President Trump, to his credit, accepted marriage equality; the Respect for Marriage Act’s bipartisan imprimatur confirms that, whatever individual Republicans may think, the party has moved on.
To say all of this more bluntly: barring some unforeseeable and improbable reversal, the Respect for Marriage Act is the nation’s last word on marriage equality. Historians can write that the campaign began in 1970, when Jack Baker and Michael McConnell applied for a marriage license in Hennepin County, Minnesota. It ended in December of 2022.
For religious Americans, the purely legal import of the Respect for Marriage Act pales beside 1993’s RFRA. The new law will not affect, for example, disputes about merchants who decline to provide services for same-sex weddings—the leading point of friction today between the gay and religious communities, and the subject of a case now before the Supreme Court. But the purely legal view is too narrow, because the Respect for Marriage Act does two very important things for faith-based groups.
For one, it relinquishes a weapon that terrifies churches and religious nonprofits: the withdrawal of federal tax exemptions, contracts, grants, and other benefits from religious organizations that oppose gay marriage. Losing their tax exemption and government contracts could hamstring and even bankrupt churches and charities; and it is a threat that many secular progressives are willing to deploy.
By holstering this weapon, the act reassures religious groups that they are not living on the edge of choosing between their principles and their business model. Though the legislation applies only to marriage and the federal government, it sets a clear precedent that makes weaponizing federal taxes and contracts harder in the future.
Also important for religious groups, the Respect for Marriage Act specifically addresses their biggest cultural fear. It says this:
Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.
This finding has no particular force of law. But, again, it puts a bipartisan majority, including that same stonking majority of Democrats, on record as saying, in effect: People who disagree with same-sex marriage are not the moral equivalent of racists. In Obergefell, the Supreme Court’s majority said the same thing, but Congress’s explicit imprimatur assuages religious conservatives’ existential fear of being banished as bigots from the public square.
Perhaps most important of all, Congress has demonstrated what Utah showed in 2015: coalition-building and compromise still work.
The Founders made Congress preeminent among our constitutional institutions because it is the only forum that brings together contending factions and brokers agreement. Today’s extremes of polarization and partisanship are very largely a consequence of Congress’s dysfunction, which is largely a consequence of the breakdown of compromise under pressure from partisan activists and social media. The Respect for Marriage Act shows how Congress can still, when it chooses, bring us together rather than drive us apart.
In that regard, it is an entirely different order of achievement than the Religious Freedom Restoration Act was a generation ago. RFRA was not a compromise. In fact, it was uncontroversial, passing in the Senate by a vote of 97-3 and in the House by (get this) a unanimous voice-vote. Rather than settling a fundamental disagreement, it showed that none existed. In our own, sadly different era of hyper-partisan polarization, the Respect for Marriage Act is a heavier lift and a bigger accomplishment, one which shows that the Founders’ plan—created to cope with conflict in an environment that was at least as polarized as today’s—can still work.
Finally, the act ought to be seen not just on its own, but as part of a recent and very heartening trend for defenders of democracy. In the November midterms, voters signaled their distaste for MAGA extremism by withholding a widely predicted red wave from Republicans. Even more significant, the electorate systematically blocked election deniers from jobs where they could monkey with the 2024 election in swing states. Meanwhile, odds are that the current Congress will enact a bipartisan reform of the dangerously flawed 1887 Electoral Count Act, blocking other pathways to election usurpation. All of those developments place our democratic institutions on a more solid footing.
In its own, albeit different way, so does the Respect for Marriage Act. At a moment when the culture wars are driving politics to inexorably greater extremes and partisans to ever-greater excesses, it is a much-needed victory for pluralism, moderation, and compromise—our core constitutional values. In that sense, the Respect for Marriage Act is of a piece with the midterm results and electoral count reform; it deserves to be greeted with the same kind of relief and hope.
Jonathan Rauch is a senior fellow at the Brookings Institution and the author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.
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The article mentions RFRA as being noncontroversial. That’s the problem. It should have been very controversial. The reason is because of what this article also says. The author writes that RFRA “requires the government to meet a higher-than-normal standard in regulating religious organizations.” That is the problem with it. The religion clauses of the Constitution are meant to make sure that believers and nonbelievers are equal. Any law that privileges only religious objectors but no one else violates this equality principle.
There are two students in a public high school, which is a government institution so the First Amendment applies. They are both taking a biology class. There is an assignment to dissect frogs. One student objects to doing so because of a religious based objection. The other objects to doing so based on a secular philosophical objection. If only the student with the religious concern is granted an exemption, there is a constitutional violation of the rights of the other objecting student.
The trouble is that many religious advocates want special legal privileging of only the religious. If we are to have a truly equal society in keeping with the true intent of the Establishment Clause and the Free Exercise Clause, atheists must have no fewer rights than religious believers. Any law like RFRA that gives special exemptions, privileges, and protections to only the religious, in a way not enjoyed by anyone else, violates this principle of government neutrality in matters of religion.
Bills like this are a model we should use more frequently. I'd love to trade conservatives, say, increased immigration enforcement and border security for a national abortion law (to pick one crude example). As Mr. Rauch noted, our system was designed to require compromise.