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US Congress Protects Right to Marry

Bipartisan Legislation Safeguards Same-Sex, Interracial Unions

Senators Rob Portman, Tammy Baldwin, Susan Collins, and Kyrsten Sinema, talk with reporters following Senate passage of the Respect for Marriage Act at the Capitol in Washington, DC, November 29, 2022.  © 2022 J. Scott Applewhite/AP Photo

On December 8, 2022, the US Congress passed the Respect for Marriage Act, which protects statutory recognition of interracial and same-sex marriages in the United States.

US courts have long recognized a constitutional right to marry. In 1967, the US Supreme Court ruled in Loving v. Virginia that bans on interracial marriage were unconstitutional, extending the right to marry to interracial couples nationwide. In 2015, in Obergefell v. Hodges, the Court similarly struck down bans on same-sex marriage and affirmed that same-sex couples enjoyed a constitutional right to marry.

The Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and rejected the idea of a constitutional right to access abortion, cast these decisions into doubt. In a concurring opinion, Justice Thomas urged the Court to reconsider any decisions that rely on the notion of “substantive due process,” or liberties that are not explicitly referenced in the Constitution but are considered implicit in its guarantees.

The Respect for Marriage Act will ensure that interracial and same-sex marriages are statutorily protected even if decisions like Loving and Obergefell are ultimately overturned. While it does not require every state to solemnize these unions, it requires all states to recognize and respect any interracial or same-sex marriages that are validly performed in other states. It also ensures that the federal government will treat such marriages as legitimate, which provides crucial protection in areas like immigration, taxation, and access to federal benefit programs.

The bill exempts nonprofit religious entities from having to provide facilities or services for the performance or celebration of a marriage, but, crucially, does not create sweeping exemptions that would allow these entities to discriminate against LGBT people in adoption and foster care, health care, and other domains.

The Respect for Marriage Act is a crucial safeguard, offering married couples much needed certainty and stability in the aftermath of the ruling in Dobbs. Now, Congress can and should do more, including passing the Equality Act to strengthen antidiscrimination protections in employment, housing, public accommodations, and other domains.

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