You may have heard that yesterday the church came out in support of the Respect for Marriage Act. For reasons I’ll describe in a minute, this support is, in my humble opinion, a big deal.
But before we get to why it’s a big deal, it’s probably worth looking and what and why the Respect for Marriage Act is.
In broad strokes, the Respect for Marriage Act is a replacement for the Defense of Marriage Act from the 1990s. (And I mean that literally—Section 3 of RfMA repeals a provision of federal law added by DOMA that expressly allows states and the federal government to decline to recognize same-sex marriages enacted in other states.)
RfMA replaces that with its opposite: under the RfMA, states must give full faith and credit to marriages performed in other states, and cannot deny marriage benefits on the basis of the “sex, race, ethnicity, or national origin” of the married persons.
But, you might ask, why would something like RfMA be necessary? Didn’t the Supreme Court say that bans on same-sex marriage violate the U.S. Constitution? Well, yes. It did. But its recent Dobbs decision called into question whether the Supreme Court will follow its precedent and whether it will continue to recognize rights grounded in the Fourteenth Amendment. True, Justice Alito dismisses concerns that Dobbs will lead to the overruling of Obergefell and Lawrence as “unfounded.” But Alito’s assurances certainly ring hollow, both in light of the substance of the opinion and in Justice Thomas’s concurrence, where he urges the Court to reconsider all of its substantive due process decisions, including Lawrence and Obergefell. So while the bill is not currently relevant, it provides significant protection to same-sex married couples if the Court continues with its skepticism of substantive due process.
I’ll note here that I’ve seen some criticism of RfMA on Twitter, asserting that it doesn’t go far enough. While it requires recognition of same-sex marriages, it doesn’t require states to perform same-sex marriages; in a world without constitutional protection of same-sex marriage, states could ban same-sex marriage. LGBTQ couples who lived in one of those states would have to cross state lines to marry, a not-insignificant burden to place on them. These critics would prefer that the federal government codify same-sex marriage.
So why doesn’t it do that? Because it lacks the constitutional authority to do so. Since I’m not a con law person, I reached out to a friend and colleague last night who is, and he explained why my intuition was right. Essentially, he explained, the 14th Amendment enforcement clause powers are limited. If the Supreme Court overrules Obergefell, the federal government doesn’t have the power to force states to issue marriage licenses, because there would be no underlying constitutional violation to remedy.
So the best Congress can do is require states to recognize other states’ marriages. It’s not a perfect solution, but in the event Obergefell goes away, it provides important protections to married couples.
So why is it a big deal that the LDS Church came out in support? At least three reasons. The first is, this is, afaik, the first time the church has acknowledged the civil legitimacy of same-sex marriage. In the past, the church has recognized some fundamental individual dignity of LGBTQ people, but made a normative argument against same-sex marriage. Here, it recognizes the legitimacy of such marriages and publicly supports legislation that requires that civil recognition.
Second, it didn’t have to say anything. The church doesn’t comment on every piece of legislation out there. It could have stayed silent and nobody would have been surprised. I don’t think virtually anybody expected, much less demanded, that the church weigh in on this.
And third, as my friend points out, the support of an institution that has historically opposed same-sex marriage sends a signal. That signal goes to members of the church, but it also goes to other institutions that have historically opposed same-sex marriage and to Mormon politicians and to Mormon and non-Mormon LGBTQ individuals.
Now, just like the RfMA, the church’s response isn’t perfect. I really wish it didn’t preface everything with the fact that, for religious purposes, it will still decline to perform or recognize same-sex marriage. Like, we know that; it’s not a surprise. And it’s mostly irrelevant to the church’s support for RfMA.
But it definitely represents a step forward by the church. And I’ll always applaud steps forward.
(This post is already too long, so I’ll only mention in passing that the current version of the bill—which apparently has broad bipartisan support!—has a carveout for religious entities. I doubt the carveout is necessary, since the bill only requires state-level recognition of marriage and the First Amendment almost certainly already provides these particular protections to religious organizations. But politics being what politics are, this added language may be what it takes to get enough bipartisan support in the Senate to overcome the filibuster.)
Photo by Maico Pereira on Unsplash