On September 15, 2022, ABA President Deborah Enix-Ross wrote members of the Senate to urge them to vote for passage of the Respect for Marriage Act, which would enshrine in statute the fundamental right to marry. H.R. 8404 (Nadler, D-NY) passed the House of Representatives by a strong bipartisan vote of 267-157 this past July. The ABA adopted policy in support of the legislation one month later during its Annual Meeting.
At the time the ABA letter was sent, Senate Majority Leader Chuck Schumer (D-NY) had anticipated bringing the bill to the floor in a matter of weeks. However, Senate has now delayed voting on the measure until after November's midterm elections to allow more time to respond to concerns over some provisions. The companion Senate legislation, S. 4556, was introduced by Sens. Susan Collins (R-ME) and Tammy Baldwin (D-WI), who have been working alongside Sens. Rob Portman (R-OH), Krysten Sinema (D-AZ), and Thom Tillis (R-NC) to assure the votes necessary to pass the bill.
In 2015, in Obergefell v. Hodges, 576 U.S. 644 (2015), the Supreme Court of the United States held that state laws banning same sex marriage are unconstitutional under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The Court also ruled that state bans on the recognition of same sex marriages duly performed in other jurisdictions are likewise unconstitutional infringements on the fundamental right to marry. Until this year, this landmark precedent seemed secure.
Efforts to enact the Respect for Marriage Act were redoubled after the Supreme Court issued its recent decision in Dobbs v. Jackson Women’s Health Organization, 597, U.S. __ (2022), reversing longstanding due process precedents regarding reproductive choice. The decision has raised deep concerns that the Court in future cases may invalidate other longstanding due process precedents as well, including Obergefell.
There are at least 25 states that still have marriage bans on the books that could spring back into effect if the Court were to turn overrule Obergefell. In addition, the federal Defense of Marriage Act (DOMA) that was enacted into law in 1996 and defines marriage for federal purposes as the union of one man and one woman has never been repealed. Were marriage bans reinstated, millions of married Americans would be stripped of federal protections that other married individuals take for granted.
Enactment of the Respect for Marriage Act would rectify these inconsistencies by repealing DOMA and requiring the federal government to recognize a marriage between two people if the marriage is valid in the state where it was performed. It likewise would require states to give full faith and credit to legal marriages, regardless of the sex, race, ethnicity, or national origin of the parties to the marriage. Enactment of the Respect for Marriage Act will assure that all legally married couples are treated equally under the law.
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