President Biden signed the Respect for Marriage Act^[1]168 Cong. Rec. H8825 (2022). This summary from the congressional session can be found in HeinOnline’s U.S. Congressional Documents database. into law on Tuesday, December 13 in order to protect the recognition of same-sex marriage. But what exactly does the act entail, and what does it mean—and not mean—for Americans? Check out our overview of this important piece of legislation with the help of resources from HeinOnline.

Why Now?

Last year, in the case Dobbs v. Jackson,^[2]19-1392 U.S. Reports 1 (2021) Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al. This document can be found in HeinOnline’s U.S. Supreme Court Library. the Supreme Court reversed the decision made in the 1970s in the case Roe v. Wade,^[3]Griswold et al. v. Connecticut, 381 U.S. 479, 531 (1965). This document can be found in HeinOnline’s U.S. Supreme Court Library. which provided constitutional protection for abortions. In his concurring opinion, Justice Clarence Thomas wrote that other Supreme Court cases that were decided using a similar legal basis—due process—should also be reconsidered. These cases include Griswold v. Connecticut,^[4]Griswold et al. v. Connecticut, 381 U.S. 479, 531 (1965). This document can be found in HeinOnline’s U.S. Supreme Court Library. which protects the right to obtain contraceptives; Lawrence v. Texas,^[5]Lawrence et al. v. Texas, 539 U.S. 558, 606 (2003). This document can be found in HeinOnline’s U.S. Supreme Court Library. protecting the right to engage in consensual, nonprocreative sex; and Obergefell v. Hodges,^[6]Obergefell et al. v. Hodges, Director, Ohio Department of Health, 576 U.S. Reports – Preliminary Prints 644 (2015). This document can be found in HeinOnline’s U.S. Supreme Court Library. the case decided in 2015 that legalized same-sex marriage.

Therefore, in order to protect same-sex marriage in the case that the Court were to reverse Obergefell, supporters of same-sex marriage pushed for legislative protection.

“Sadly we must also acknowledge another reason we’re here,” Biden said during a ceremony celebrating the signing. “Congress is acting because an extreme Supreme Court has stripped away the right important to many Americans that has existed for half a century: the Dobbs decision. The court’s extreme conservative majority overturned Roe v. Wade and the right to choose.”^[7]Administration of Joseph R. Biden, Jr., 2022 Remarks on Signing the Respect for Marriage Act , Daily Comp. Pres. Docs. 1 (2022). This document can be found in HeinOnline’s Federal Register Library.

What Does the Act Do?

The legality of same-sex marriage will still rely on Obergefell v. Hodges. If that case is reversed, the right to same-sex marriage will be left up to state law.

However, the Respect for Marriage Act^[8]168 Cong. Rec. H8825 (2022). This summary from the congressional session can be found in HeinOnline’s U.S. Congressional Documents database. requires that states recognize both same-sex and interracial marriages performed in any state where it is legal, and it provides federal recognition of these marriages. Therefore, couples would be able to travel to a different state to perform their marriage, and it will legally need to be recognized anywhere in the country.

This act effectively repeals the Defense of Marriage Act,^[9]To define and protect the institution of marriage., Public Law 104-199, 104 Congress. 110 Stat. 2419 (1996). This document can be found in HeinOnline’s U.S. Statutes at Large database. which was passed under the Clinton administration and prohibited federal recognition of same-sex marriage, while allowing states to also refuse to recognize same-sex marriages performed in other states. This law had been deemed unconstitutional in the 2013 case United States v. Windsor.^[10]United States v. Windsor, Executor of the Estate of Spyer, et al, 570 U.S. Rep 744, [ii] (2013). This document can be found in HeinOnline’s U.S. Supreme Court Library.

If Obergefell were to be reversed, the majority of states would likely prohibit same-sex marriage, including most states in the South and the Midwest. Therefore, the act is especially timely and important for LGBTQ+ advocates.

However, in order to gain bipartisan support for the legislation, it was amended to ensure that nonprofit religious groups would not be required to perform same-sex marriages.

As a note, the act does not apply to federally recognized Indigenous nations.

A Brief History of the Legislation

The Respect for Marriage Act was originally introduced in the House of Representatives in 2009 by New York Representative Jerrold Nadler.^[11]155 Cong. Rec. 4303 (2009). This document can be found in HeinOnline’s U.S. Congressional Documents database. Editions of the act had been circulated in Congress since in an effort to repeal the Defense of Marriage Act.

Biden has not always supported same-sex marriage—in fact, he voted for the Defense of Marriage Act while he was serving as a senator.^[12]142 Cong. Rec. 22436 (1996). This document can be found in HeinOnline’s U.S. Congressional Documents database. However, in 2012, while serving as vice president, he publicly announced his support for same-sex marriage,^[13]William N. Eskridge Jr., Presidential Constitutionalism and Marriage Equality, 167 U. PA. L. REV. 1891 (2019). This document can be found in HeinOnline’s Law Journal Library. even before President Obama did. And by 2021, a Gallup poll found that public support for same-sex marriage in the U.S. was at 70%.

The law passed in the Senate on November 29, 61-36. It then proceeded to pass in the House of Representatives on December 8, 258-169, and was sent to President Biden to sign a few days later.

“The road to this moment has been long, but those who believe in equality and justice, you never gave up,” Biden said. “So many of you put your relationships on the line, your jobs on the line, your lives on the line, to fight for the law I’m about to sign. From me and the entire nation: thank you, thank you, thank you.”^[14]Administration of Joseph R. Biden, Jr., 2022 Remarks on Signing the Respect for Marriage Act , Daily Comp. Pres. Docs. 1 (2022). This document can be found in HeinOnline’s Federal Register Library.

Moving Forward

However, it is important to note that this act does not provide other protections for the LGBTQ+ community. For example, further protections are needed to protect against violence and discrimination.

To learn more about efforts to obtain rights and justice for the LGBTQ+ community, check out our new database, LGBTQ+ Rights, available as part of our complimentary Social Justice Suite. And be sure to follow along with the HeinOnline Blog as we continue to cover important steps toward respect for all people.