Congress set to pass bill recognizing all two-person marriages

The Respect for Marriage Act would ensure federal recognition for same-sex couples.

By Michael MarksNovember 29, 2022 2:38 pm,

The U.S. Senate approved a procedural motion on Monday to advance the Respect for Marriage Act, a bill that would ensure federal recognition of all marriages between two people.

The bill would repeal the Defense of Marriage Act, which allowed states to not recognize same-sex marriages.

Dale Carpenter, chair and professor of Constitutional law at the Dedman School of Law at Southern Methodist University, spoke to Texas Standard about the bill’s provisions. Listen to the story above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: The headline on this bill suggests it protects the right of any two people to get married. Does it do anything else?

Dale Carpenter: It does a couple of very important things in that respect. It does indeed secure the right of two people to get married, at least in the eyes of the federal government. The federal government agrees that it will recognize those marriages. It does not actually do the work of a decision known as Obergefell v. Hodges from 2015, in that it does not actually guarantee that two people can get married in any given state. Only a constitutional decision probably can do that. It says that if people do get married in a state, the federal government has to recognize those marriages. So it reverses what’s known as the Defense of Marriage Act, which had barred federal recognition of same-sex marriages.

Let’s say one state decides it’s not going to recognize same-sex marriages. Would it force other states not to recognize that union? In other words, if there had been a previous union between a same-sex couple and the law has changed in that particular jurisdiction, would it force a neighboring state, for example, to recognize the marriage as valid?

The act does two things, really. One is the requirement that the federal government recognizes marriages between two people. The second thing it does is that, although it permits a state to refuse to recognize same-sex marriages after the Obergefell decision is overruled, if it is overruled, it does require every state to recognize same-sex marriages and interracial marriages that are entered in other states. So if Texas decides after Obergefell is overruled that it doesn’t want to recognize same-sex marriages anymore or allow them within its jurisdiction, it still has to recognize same-sex marriages that are performed in other states.

So is this effectively an attempt to prevent the court from doing to Obergefell, which is the decision that legalized same-sex marriage nationwide, what it did with Roe?

Well, it can’t prevent the court from overruling a decision like Obergefell somewhere down the road, although I don’t think the court is likely to do so, in fact, in the near term or medium term. So it can’t prevent the court from doing that, but what it can do is provide as much of a backstop to protect same-sex marriages legally as the federal government can do under its constitutional powers.

» MORE: LGBTQ Texans fear Supreme Court will target same-sex marriage, leaving them legally unprotected

There’s some claims circulating on social media that this bill could affect the tax-exempt status for some religious institutions. Do you know anything about that?

There’s a lot of misinformation out there about this bill. I think it’s important to note two very important things. One of them is that this recognition that the bill requires is only recognition that is required by government and government officials. It does not apply to any private and, for example, nonprofit religious organizations or churches. So it just doesn’t even apply to them. It has nothing to do with them whatsoever, so it doesn’t threaten them with anything.

But the second thing it does is that it takes the kind of belt and suspenders approach and says, well, just to make sure, we are going to say directly in the bill – explicitly in the bill – that no nonprofit religious organizations will have to provide goods, services or facilities for wedding ceremonies or receptions. And it guarantees that churches and these other charitable religious organizations that refuse to recognize same-sex marriages will not lose their tax-exempt status. So I don’t know how much more explicit the bill could be about this.

Yeah, I think you’re addressing an issue that Texas Senator John Cornyn put out there yesterday, that this bill could make people with sincerely-held religious beliefs that don’t condone same-sex marriage open to lawsuits. You’re saying this bill does not do that?

There is no basis for that fear. There never was a basis for that fear. And in fact, the bill specifically addresses those concerns.

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