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Explainer: What you should know about the Respect for Marriage Act

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September 7, 2022

In his concurring opinion on the Supreme Court’s recent Dobbs decision—a decision which overturned the “precedent set in both Roe v. Wade and Planned Parenthood v. Casey“—Justice Clarence Thomas wrote that the court “should reconsider opinions protecting same-sex relationships, marriage equality, and access to contraceptives.” Though this view was not shared by the majority, who stated “unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,’” Congress has been stirred to seek pre-emptive measures that secure and expand same-sex marriage protections by proposing the Respect for Marriage Act.

Here is what you should know about the Respect for Marriage Act and its implications.

What is the Respect for Marriage Act?

The Respect for Marriage Act—introduced by Rep. Jerry Nadler (D-NY-10) in the House of Representatives and Sens. Feinstein (D-CA), Baldwin (D-WI), and Collins (R-ME) in the Senate—is a bill that seeks to “repeal the Defense of Marriage Act and codify federal recognition for marriage equality.” As stated in the bill summary, “the bill repeals and replaces provisions that define, for purposes of federal law, marriage as between a man and a woman and spouse as a person of the opposite sex with provisions that recognize any marriage that is valid under state law.” 

The summary goes on to outline the bill’s aim to “repeal and replace provisions that do not require states to recognize same-sex marriages from other states with provisions that prohibit the denial of full faith and credit or any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity, or national origin.” Finally, the Respect for Marriage Act would permit the Department of Justice “to bring a civil action” and would establish “a private right of action for violations.”

The Respect for Marriage Act is a federal legislative attempt to finally entrench, nationwide, the precedent set by the Supreme Court’s 2015 Obergefell v. Hodges decision, which ruled that “state laws barring same-sex marriages were unconstitutional.” At its core, this bill is a further attempt by Congress to redefine marriage, a union that need not be redefined and which government has no authority to redefine.

What are the religious liberty implications?

In a letter sent to the U.S. Senate on July 26, ERLC Acting President Brent Leatherwood conveyed why the Respect for Marriage Act presents such grave religious liberty concerns for people of faith. He said, “Given the significant role marriage plays in faith, the ‘Respect for Marriage Act’ raises serious religious liberty concerns for individuals and organizations who maintain this view of marriage (the view that marriage is an institution created by God between one man and one woman for life) and are in contract with, funded by, or working jointly with the government.” 

Since Obergefell, rights of conscience and religious freedom have found themselves in the crosshairs of a number of notable cases, including Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and Fulton v. City of Philadelphia (2021), each of which was ruled in favor of religious liberty. Should the Respect for Marriage Act find passage, however, we may rightly assume that rights of conscience and religious freedom will find themselves under threat yet again. 

One additional concern is the absence of a “limiting principle in this bill.” Given this omission, it is “unclear whether the Respect for Marriage Act would codify federal recognition to civil marriages that go beyond the scope of two individuals in states that allow it.” That the bill seeks to “recognize any marriage” (emphasis added) considered valid under state law undoubtedly opens the door for federal recognition of such things as polygamous relationships—now legally recognized in several Massachusetts cities—and a presumably long list of other iterations as they strike our culture’s fancy. 

For these reasons and more, this bill is an affront to the rights of conscience and religious liberty so fundamental to American society.

What happens next?

On July 19, the House of Representatives voted to pass the Respect for Marriage Act with broad bipartisan support. The final vote was 267-157 with 47 Republicans joining with all Democrats in support of the bill. Before it can become law, the bill must be passed in the Senate and be signed by the president. 

While it’s unclear whether the Respect for Marriage Act will pass the Senate, Andrew Solender and Shawna Chen of Axios suggest that “support among Republican senators is gradually building.” Several GOP senators have voiced support for the bill, including Sen. Ron Johnson (R-Wis.), Sen. Thom Tillis (R-N.C.), and Sen. Susan Collins (R-Maine) among others. In an article published on Aug. 2, Solender wrote that “Senators are working behind the scenes on changes to” the bill. Sen. Rick Scott (R-Fla.), for instance, said “We want to make sure that there’s no infringement on your individual right or any entity’s individual right to express their own beliefs from a religion standpoint.” Likewise, Sen. Mitt Romney (R-Utah), who is considered “a key undecided vote,” said he’s “looking at protections for religion” as he considers his position on the bill. It’s possible that Senate discussions will lead to the proposal of “new language on the bill” or push “for a vote on an amendment.” 

For the bill to pass, 10 GOP senators will have to join all Democrats to overcome the filibuster’s 60-vote threshold. Senate Majority Leader Schumer has signaled that he plans to bring the bill forward for consideration and a vote after the August recess.

Why we stand for God’s design for marriage

The institution of marriage was created and initiated by God, as our sacred text conveys: “God created man in His own image; in the image of God He created him; male and female He created them” (Gen. 1:27). It is not subject to redefinition, no matter what the whims of culture may say. As Christians, “we hold fast to this understanding of God’s design of marriage as being between one man and one woman for life” not only because it’s right and faithful to the Word God has spoken to us, but also “because this biblical framework undergirds a healthy society.” And when the sanctity of marriage is not recognized, society suffers.

The ERLC stands firmly opposed to this legislation. Please join us in praying that, should it be scheduled for a vote, the Senate will vote against the passage of the Respect for Marriage Act.

Jordan Wootten

Jordan Wootten serves as a News and Culture Channel Editor at the Ethics & Religious Liberty Commission. He is a graduate of The Southern Baptist Theological Seminary, where he earned his Master of Arts in Theological Studies. Jordan is married to Juliana, and they have three children. Read More by this Author