On November 16, 2022, the U.S. Senate invoked cloture on the Respect for Marriage Act (RFMA), split 62-37, with 60 votes needed to end the filibuster and pass the bill. RFMA is set to repeal the Defense of Marriage Act (DOMA) passed by Congress in 1996, which defined marriage on the federal level as the union of man and woman and allowed states to refuse to recognize same-sex marriages conferred by other states – though parts of DOMA had been declared unconstitutional by the Supreme Court in United States v. Windsor and Obergefell v. Hodges, resulting in the requirement of all states to recognize same-sex marriage. If RFMA passes, as it is likely to do given yesterday’s Senate vote, states will be compelled to recognize same-sex marriages performed in other states even if the Supreme Court were to overturn Obergefell and restore states’ authority to refuse marriage licenses to same-sex couples. Read on to learn how the bill’s passage could affect individuals and families.
Dubious Protection for Conscience-Based Objections
The bipartisan effort to make religious liberty protections explicit may have assuaged fears that RFMA might harm religious organizations’ ability to operate and with tax-exempt status, but it does little to reassure persons who hold religious or conscience-based objections to same-sex marriage. While religious non-profits are protected under the bill, the burden is on non-religious non-profits to prove that their conscience-based objections qualify for First Amendment protection. Notably, the RFMA would also allow both the U.S. attorney general and “victims of discrimination” to file federal lawsuits against state agents who deny a valid marriage license on the basis of “sex, race, ethnicity, or national origin,” meaning any state or employee of a state would receive a federal court injunction to recognize such a union as valid – or take legal action against “compelled speech” in court and deal with the consequences.
Further Erosion of Children’s Rights
The bill will deepen existing damage done to children’s rights by the Obergefell decision. Children’s need of both their mother and father has already been obscured by no-fault divorce, same-sex marriage and adoption, as well as the surrogacy industry – but RFMA would further bury this reality by considering parentage a “quintessential right” conferred by a marriage license, and would formally and legally sever marriage from procreation and the child from his biological parentage. Accordingly, states would be forced to recognize the parentage of both individuals in a same-sex couple, even if their child was conceived through an assisted reproductive technology such as surrogacy. So far as we know, the best a child can expect when seeking to know his personal identity and biological parentage is to be gaslit, or stonewalled with the words “donor” or “surrogate.” The basic ability of citizens to articulate that biology matters – whether for life-altering medical procedures, birth certificate regulations, or raising a child – is further endangered by RFMA.
What’s the Path Forward?
The Senate vote on RFMA is set for this November, which means that by next year, we could begin to see lots of changes with regard to marriage and family laws. Already, state representatives are pushing another bill, called the “Equal Access to Reproductive Care Act,” which seeks to “moderniz[e] the federal tax code to allow equal treatment to those using assisted reproductive treatments and surrogacy arrangements regardless of sexual orientation [or] gender identity […].” We don’t have all the answers yet, but our first and most important task at this time is to feed our resolve in the face of heightened scrutiny. Remember why and for whom we are fighting this good fight: read the stories of children raised by same-sex couples or conceived through assisted reproductive technologies. Recall the history of Supreme Court cases and cultural movements which have allowed activists to gain a foothold in policies which have affected and will affect generations of Americans, and mark those who have permitted such policies to pass. Finally, let’s remind ourselves of the truth that the family plays an irreplaceable role in children’s lives – a place where they have the best chance of receiving the love, dedication, and security they need to flourish. If we are guided by this enduring truth, we will be all the more effective as advocates for marriage, family, and sexual integrity.
