The bipartisan Respect for Marriage Act requires states to recognize same-sex marriages while balancing the interests of religious groups. Robin Fretwell Wilson is the director of the Institute of Government and Public Affairs and the Mildred Van Voorhis Jones Chair in Law at the University of Illinois Urbana-Champaign. A letter co-written by Wilson urging bipartisan support for the law was cited during the Senate floor debate. She spoke with News Bureau business and law editor Phil Ciciora about the significance of the law.
What does the Respect for Marriage Act do that’s different than previous same-sex marriage laws?
The previous same-sex marriage law would be the landmark U.S. Supreme Court decision in 2015, Obergefell v. Hodges, that opened marriage to same-sex couples. Generally speaking, it was assumed that the Obergefell decision locked down the issue of same-sex marriage. But then last summer’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and sent the issue of abortion back to the states, introduced a lot of doubt into the equation.
In the aftermath of Dobbs, many families were confused and concerned that another matter of what we thought was settled law – in this case, same-sex marriage – would once again be on the Supreme Court’s docket. Of course, if a Supreme Court justice talks about rolling back something that I relied on in my life, I would take that risk very seriously, and many people did.
Normally, the Supreme Court issues an opinion and that’s the end of it. But Congress decided that wasn’t enough in this instance to quell concerns and that there needed to be federal policy on same-sex marriage. And that’s what the Respect for Marriage Act does. It now codifies recognition by the federal government and states of marriages for LGBTQ couples that are validly entered into in a U.S. state. It doesn’t make all states offer same-sex marriage, but it does make them give respect to those marriages.
One criticism of the Respect for Marriage Act is that it is merely a messaging bill. I don’t think that’s true. The Respect for Marriage Act doesn’t compel states to allow same-sex marriage. Congress doesn’t have the power to force states to say that their marriage laws must encompass same-sex couples, because marriage law has been part of the states’ regulation of general welfare. But what Congress could do is regulate interstate relationships. In other words, if you’re a same-sex couple married in the state of Illinois, every other state has to recognize your marriage. That should be within Congress’s purview.
What the Respect for Marriage Act also does is reverse the Defense of Marriage Act of 1996, which directed states not to allow same-sex couples to marry and the federal government not to recognize them. That law was, frankly, a stain on our nation, and the Respect for Marriage Act erases that stain.
Was Obergefell decided incorrectly, thereby creating the need for extra legislative support for same-sex couples?
I don’t think Obergefell was decided incorrectly at all. At its core, the Obergefell opinion was an ode to marriage. It was an ode to the fact that when people are allowed to marry, they’re able to protect each other in literally 1,000-plus different ways – and I pick that number not at random, but for a reason. There are more than 1,000 different federal benefits tied to marriage. That was the question at the core of the United States v. Windsor, which was the Supreme Court decision before Obergefell. Windsor held that equal protection guarantees meant that same-sex couples shouldn’t be taxed differently because they’d been excluded from marriage.
Politics aside, the Respect for Marriage Act is about the very real, tangible benefits that marriage provides to couples and their children. In a way, the Respect for Marriage Act buttresses former Justice Anthony Kennedy’s claims in Obergefell of marriage being the bedrock or keystone of the U.S.
It’s really sort of stunning because we don’t talk about children’s rights in our jurisprudence very much, and yet the interests of children infused Obergefell and the equal protection and liberty interests of couples to marry. Children’s interests came to the fore because one of the couples suing in Obergefell had fostered and adopted children together. That couple wanted to marry not only to protect each other, but also to protect their children. The Respect for Marriage Act will fortify those protections for families and children.
What’s the big takeaway for LGBTQ rights and religious groups surrounding the legislative process of the Respect for Marriage Act?
The Respect for Marriage Act protects religious liberty and same-sex marriage. In the text of the law, Congress assured believers of traditional marriage that “diverse beliefs” can be held by reasonable people on the divisive issue of the nature of marriage, and those beliefs should be accorded “proper respect.” And Congress gave specific protections to faith groups to follow their own views of marriage.
The important lesson is that civil rights aren’t like colliding trains, where one civil right has to take precedence over another. Protecting civil rights is not a zero-sum game with winners and losers. Civil rights can be like puzzle pieces that can be made to fit together.
Even though it garnered significant bipartisan support in both the Senate and the House of Representatives, the Respect for Marriage Act caught a lot of social conservatives off guard. They initially attacked the law and said that it was going to open a Pandora’s box of issues for people of faith. And yet, a diverse group of faith groups pushed for the Respect for Marriage Act, lifting LGBT rights along the way, a good and decent thing to do.
In the end, support by conservative Republicans helped to get the Respect for Marriage Act across the line. That was very heartening to see.