The Respect for Marriage Act isn't perfect, but it is important. Let's talk about it.

Aside from the Heritage Foundation's sad face emoji tweet, there are also criticisms of and concerns about the legislation on the left. What are the issues?

The Senate, on a 61-36 vote on Tuesday, passed the Respect for Marriage Act — legislation that has both gotten too much praise and not enough praise.

The bill’s scope has been overstated in some coverage as a “marriage equality” or “same-sex marriage” bill. It’s not that. It does, however, play an important role in providing a level of protections for couples understandably worried in the wake of the Supreme Court’s decision to overturn Roe v. Wade this past term — and Justice Clarence Thomas’s stated desire for the court to do the same with Obergefell v. Hodges, the Supreme Court’s 2015 marriage equality decision.

The Respect for Marriage Act is, almost entirely, a bill preparing for a contingency that may never — and should never — occur: The overturning of Obergefell. But, if that were to happen, this bill, which is now expected to be law in short order, will be in place.

So, with that in mind, what does the Respect for Marriage Act do?

The bill repeals 1996’s discriminatory Defense of Marriage Act. The bill requires federal recognition of any marriage between two people that was legally entered into at the time when it was entered into. The bill also bars states from discriminating on the basis of “sex, race, ethnicity, or national origin” in marriage recognition — a move that, in effect, requires states to recognize same-sex couples’ marriages entered elsewhere even if they have laws barring same-sex couples from marrying. The bill would also provide the same protections to interracial couples, should Loving v. Virginia ever be overturned.

Some on the right were saddened by the bill’s Tuesday passage.

Heritage Foundation @Heritage

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In addition to the sad Heritage Foundation, though, the bill also has critics on the left. I’ve discussed the bill previously — the House version here and the Senate version here — but I’d like to discuss those concerns today.

There are primarily¹ four issues that I've seen leading to criticism and concerns from the left:

Marriage shouldn’t be the focus when Obergefell is good law, anti-trans laws and sentiments are proliferating, and other measures like the Equality Act are also pending in the Senate. There is, understandably, concern that the Respect for Marriage Act’s passage will be used by politicians as their “Look, we did something!” card. This is a legitimate concern, but, as for the Equality Act, Sen. Tammy Baldwin — the lesbian lawmaker who helmed the passage of the Respect for Marriage Act and is the lead sponsor of the Equality Act in the Senate — certainly would have pressed for passage of the Equality Act if she thought it would be able to get the votes. While I would gladly get rid of the filibuster to advance legislation, we know that’s a problem larger than the Equality Act — and that the Dems lacked the votes to get rid of the legislative filibuster. So, as I see it, this concern is legitimate, but must be overcome by continuing to hold lawmakers accountable: pressing for the Equality Act’s necessity and passage and working for successes like those seen in Ohio earlier this week at holding anti-trans legislation at bay, among other steps.

The bill doesn’t require states to marry same-sex couples. This is true — but it’s also true that there’s no federal law requiring states to marry opposite-sex couples. And, more than that, it’s not clear that such a law — either of them — would be constitutional. The federal government doesn’t grant marriage licenses; states do. Instead, and unlike the Defense of Marriage Act, what this bill does is to provide protections on neutral grounds — the bill is talking about marriages “between 2 individuals,” not just same-sex couples — and doing so within established federal powers. This is a bill aimed at providing necessary protections in case of an emergency — the overturning of Obergefell — not making a point only later to be struck down.

The bill creates new religious exemptions. This is complicated. It does. But, as I’ve covered repeatedly at Law Dork, we live in a time where the Supreme Court values religious freedom above most, if not all, rights, and I think a responsible, pragmatic reading of the Respect for Marriage Act must be done in this context.

Sections 6 and 7 of the bill have three provisions that assert an effect on religious freedoms and liberties. Section 6(a) says that the court’s constitutional interpretations about religious liberty and religious protections existing in federal law are not affected by this bill. Section 7(a) says this bill doesn’t affect benefits “not arising from a marriage,” including benefits like tax-exempt status. Both of these provisions appear to be more or less restating existing principles — albeit in a way that highlights religious protections in an unnecessary way.

Section 6(b), however, lays out an exemption applicable to a wide variety of “nonprofit religious organizations” that they “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” This is a new religious exemption. It is limited to nonprofit entities, so that should be kept in mind. It does, though, go further than the ministerial exception that has traditionally been applied as a constitutional limit on application of otherwise generally applicable rules to religious entities’ ministers. But, it should be noted that — even before Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett — the court had begun taking steps to expand the ministerial exception. It’s not clear, in other words, that the 6(b) language goes too much further than the court might require under the First Amendment (particularly when read in tandem with Burwell v. Hobby Lobby and other similar cases and in light of the upcoming arguments over website design in 303 Creative v. Elenis). And, its inclusion — clearly a compromise by the drafters to ensure the necessary Republican support — also cuts off the bill from an area of potential legal challenge.

At the end of the day, managing religious protections under this court is difficult. The criticism is justified, but, ultimately, I’m not sure the language is a bad decision in this context, either.

The bill gives the Supreme Court permission to overturn Obergefell. I don’t think this one is right. This bill is a backstop. It’s not a replacement. It is, in fact, because of those constitutional limits on creating any federal marriage requirement law discussed above that I don’t think this law will ever be seen as — or properly even used as — an argument for overturning Obergefell. I understand wanting to be prepared for all possibilities, but I just don’t think this is a major concern of passing this legislation.

1. There also is some criticism of the decision to bar federal recognition of “polygamous marriages” in the bill, given efforts in some jurisdictions to provide additional protections for nontraditional families.