Respect for Marriage Act

The Respect for Marriage Act, abbreviated as RFMA (H.R. 2523, S. 1236), was a proposed bill in the United States Congress that would have repealed the Defense of Marriage Act and required the U.S. federal government to recognize the validity of same-sex marriages. It was supported by former U.S. Representative Bob Barr, original sponsor of the Defense of Marriage Act (DOMA), and former President Bill Clinton, who signed DOMA in 1996.[1] The administration of President Barack Obama also supported RFMA.[2]

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Having been introduced in several previous Congresses, the last version of the proposal was put forth in the 114th Congress in both the House and the Senate in January 2015. Senator Dianne Feinstein of California remarked that this Congress must "ensure that married, same-sex couples are treated equally under federal law".[3]

On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the 14th Amendment requires all U.S. states to recognize same-sex marriages.[4] This decision rendered the last remaining provision of DOMA unenforceable and essentially made the Respect for Marriage Act de facto federal law. The Respect for Marriage Act would now only remove the unenforceable provisions from the statutes.

Background

Until 1996, the federal government of the United States customarily recognized marriages conducted legally in any state for the purpose of federal legislation.[5] Following an unsuccessful lawsuit aimed at legalizing same-sex marriage in Hawaii, the United States Congress passed the Defense of Marriage Act, one section of which forbids the federal government from recognizing same-sex marriages.[5][6]

Text of the bill

H.R.2523, the Respect for Marriage Act, as introduced in the House on June 26, 2013, read:[7]

A BILL

To repeal the Defense of Marriage Act and ensure respect for State regulation of marriage.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Respect for Marriage Act".

SEC. 2. REPEAL OF SECTION ADDED TO TITLE 28, UNITED STATES CODE, BY SECTION 2 OF THE DEFENSE OF MARRIAGE ACT.

Section 1738C of title 28, United States Code, is repealed, and the table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by striking the item relating to that section.

SEC. 3. MARRIAGE RECOGNITION.

Section 7 of title 1, United States Code, is amended to read as follows:

Sec. 7. Marriage
(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
(b) In this section, the term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Choice of law problem

In addition to repealing DOMA, the legislation would have established a method for the federal government to determine whether a marriage is valid for federal purposes, a legal dilemma known as choice of laws. Anticipating that federal courts and administrators would need to determine the validity for federal purposes of a marriage that is recognized in one state and not another, or in a foreign country and not by every U.S. state, it created two tests. If celebrated in a state of the U.S., a marriage is valid for federal purposes if valid in that state. If celebrated elsewhere, a marriage is valid for federal purposes if it is valid in at least one U.S. state.[8]

Legal scholars disputed whether the language of the Respect for Marriage Act was an appropriate solution to the problem. Lynn Wardle wrote that it "is substantively biased to circumvent state policies that do not allow or recognize same-sex marriage" and "a violation of federalism".[9] William Baude endorsed the language of the Respect for Marriage Act. He argued that the options are to give priority to the place a marriage is celebrated or to the domicile of the married couple, that one's domicile is more easily manipulated, and that basing the choice of law on the place of celebration "promotes predictability and stability".[8]

Legislative progress

111th Congress

The 2009 bill was introduced by U.S. Representative Jerrold Nadler of New York on September 15, 2009, and garnered 120 cosponsors.[10]

112th Congress

The 2011 bill was introduced by U.S. Representative Jerrold Nadler of New York on March 16, 2011, and a U.S. Senate version was introduced by Dianne Feinstein of California on the same day. President Obama announced his support for the bill on July 19, 2011.[11]

House

In September 2011, Ileana Ros-Lehtinen of Florida became the 125th cosponsor of the bill in the U.S. House of Representatives and the first Republican member of the U.S. Congress to announce support for the bill.[12] In December 2012, Richard Hanna and Charles Bass became the next Republicans to cosponsor the bill.[13][14]

Senate

On July 20, 2011, Sen. Patrick Leahy of Vermont chaired the first-ever congressional hearing on a proposal to repeal the Defense of Marriage Act (DOMA).[15][16] On October 25, 2011, Sen. Leahy announced that the Senate Judiciary Committee would begin debate on November 3, 2011, with a committee vote likely to happen the following week.[17] On November 3, 2011, the bill was debated in the Senate Judiciary Committee, where its passage was a foregone conclusion due to sufficient votes to pass being found in the 10 Democratic members of the committee, who are cosponsors of the bill; however, Republicans on the Committee requested the vote be delayed one week.[18] During the debate Sen. Feinstein noted that DOMA denies same-sex couples more than 1,100 federal rights and benefits that are provided to all other members of that class, legally married couples, including rights to Social Security spousal benefits, protection from estate taxes when a spouse passes away, and the ability to file taxes jointly and claim certain deductions.[19] The Senate Judiciary Committee voted 10-8 in favor of advancing the bill to the Senate floor.[20]

113th Congress

The bill's sponsors decided not to reintroduce the Respect for Marriage Act in 2013 until the United States Supreme Court issued a decision in United States v. Windsor.[21] They reintroduced it on June 26, the same day the Court ruled in that case that Section 3 of the Defense of Marriage Act was unconstitutional.[22]

114th Congress

The aforementioned lawmakers Representative Jerrold Nadler of New York and Senator Dianne Feinstein of California reintroduced the legislation on the first day of the 114th Congress. Nadler remarked, "We must finish the job begun by the Supreme Court". In terms of co-sponsors, the proposal soon accrued 77 co-sponsors in the House and 41 in the Senate. The news received a warm welcome from LGBT rights groups such as the American Military Partner Association, which stated that Congressional action had to take place in order to assist same-sex military couples seeking veterans benefits.[3]

Section 2 of DOMA, the last substantive provision of that act remaining viable after Windsor, was declared unconstitutional in Obergefell in June 2015.

Legislative history
Congress Short title Bill number(s) Date introduced Sponsor(s) # of cosponsors Latest status
111th Congress Respect for Marriage Act of 2009 H.R. 3567 September 15, 2009 Rep. Jerrold Nadler (D–NY) 120 Referred to the House Judiciary Committee

Referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

112th Congress Respect for Marriage Act of 2011 S. 598 March 16, 2011 Sen. Dianne Feinstein (D–CA) 32 Approved by Senate Judiciary Committee; sent to Senate floor.[20]
H.R. 1116 March 16, 2011 Rep. Jerrold Nadler (D–NY) 160 Referred to the House Judiciary Committee
113th Congress Respect for Marriage Act of 2013 S. 1236 June 26, 2013 Sen. Dianne Feinstein (D–CA) 45 Referred to the Senate Judiciary Committee
H.R. 2523 June 26, 2013 Rep. Jerrold Nadler (D–NY) 183 Referred to the House Judiciary Committee
114th Congress Respect for Marriage Act of 2015 S. 29 January 6, 2015 Sen. Dianne Feinstein (D–CA) 44 Referred to the Senate Judiciary Committee
H.R. 197 January 6, 2015 Rep. Jerrold Nadler (D–NY) 151 Referred to the House Judiciary Committee

See also

References
  1. "The Respect for Marriage Act Garners Support of President Clinton and Former Rep. Bob Barr, DOMA's Original Author" (Press release). United States House of Representatives. 2009-09-15. Archived from the original on 2011-07-12. Retrieved 2009-09-16.
  2. Colleen Curtis (July 19, 2011). "President Obama Supports the Respect for Marriage Act". The White House.
  3. Johnso, Chris (January 6, 2015). "Respect for Marriage Act reintroduced". The Washington Blade. Retrieved January 6, 2015.
  4. Obergefell v. Hodges, 576 U.S. ___, ___ (2015) ("The Court now holds that same-sex couples may exercise the fundamental right to marry.").
  5. Shishkin, Philip (2009-07-09). "Massachusetts Sues U.S. Over Definition of Marriage". Wall Street Journal. Retrieved 2009-09-28.
  6. "A Short History of the Defense of Marriage Act" (PDF). Gay & Lesbian Advocates & Defenders. 2009-03-03. Retrieved 2009-09-28.
  7. Text of the bill
  8. William Baude, "Beyond DOMA: Choice of State Law in Federal Statutes," Stanford Law Review, vol. 64, June 2012, 1371-1430, esp. 1401-2, 1417-8, available online, accessed July 4, 2012
  9. Lynn D. Wardle, "Section Three of the Defense of Marriage Act: Deciding, Democracy, and the Constitution," Drake Law Review, 951-1003, esp. 983-4, available online, accessed July 4, 2012
  10. Eleveld, Kerry (2009-09-15). "Respect for Marriage Act Debuts". The Advocate. Retrieved 2009-09-16.
  11. Christian Science Monitor:"Obama, in stand for gay rights, calls for repeal of DOMA," July 19, 2011, accessed July 20, 2011
  12. Harmon, Andrew (September 23, 2011). "DOMA Repeal Gets Its First Republican Cosponsor". The Advocate. Retrieved September 24, 2011.
  13. "Second Republican break ranks on gay marriage following Gingrich comments". GayStarNews. December 27, 2012. Retrieved December 27, 2012.
  14. "Third Republican member of US House of Reps publicly supports gay marriage". GayStarNews. December 27, 2012. Retrieved December 27, 2012.
  15. "Leahy Chairs Historic Hearing On Bill To Repeal DOMA". Patrick Leahy - United States Senator for Vermont 2011. July 20, 2011. Retrieved 27 October 2011.
  16. Felicia Sonmez (July 19, 2011). "Leahy hails Obama support for Defense of Marriage Act repeal". Washington Post. Retrieved 27 October 2011.
  17. Pete Williams (October 25, 2011). "Senate Democrats Move Forward With DOMA Repeal Vote". MSNBC. Archived from the original on 28 October 2011. Retrieved 27 October 2011.
  18. Serena Marshall (November 3, 2011). "DOMA Vote Delayed in Senate Judiciary Until Next Week". ABCNews.com: The Note. Retrieved November 5, 2011.
  19. Mallie Jane Kim (November 3, 2011). "Senate Committee Likely to Pass DOMA Repeal". U.S.News & World Report. Retrieved November 5, 2011.
  20. "Senate panel OKs repeal of Defense of Marriage Act". USA Today. Associated Press. November 10, 2011.
  21. Johnson, Chris (May 1, 2013). "No DOMA repeal bill until court decision". Washington Blade. Retrieved August 17, 2013.
  22. Ring, Trudy (June 26, 2013). "Finishing the Job: DOMA Repeal Bill Reintroduced". The Advocate. Retrieved August 17, 2013.
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