The Respect For Marriage Act Is Remarkable, But Not Enough For LGBTQ+ Parents

You may have heard that in June 2022, the Supreme Court issued its opinion in the Dobbs case, overturning Roe v. Wade and returning the issue of abortion — after 50 years of federal protection — to be determined on a state-by-state basis. In doing so, the Supreme Court rejected the idea that the Constitution provides the right of a pregnant person to have an abortion. Further, the Dobbs opinion raised the specter of what other cases — including those protecting a right not explicitly mentioned in the Constitution — might be subject to reversal.

Justice Thomas, for his part, issued a concurring opinion that invited the Supreme Court to reconsider precedents that he considered faulty. His list included Obergefell v. Hodges, the 2015 case that established a Constitutional right for same-sex couples to marry. No other Justice joined Thomas’s opinion, but still, the language was concerning.

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Historic Progress For The LGBTQ+ Community

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Less than six months after Dobbs, Congress reacted by moving to protect same-sex marriage, regardless of whether Obergefell is subject to reconsideration. Yesterday, Tuesday, December 13, 2022, President Biden signed into law the Respect for Marriage Act (RFMA). In one sense, the law has little practical effect — so long as Obergefell stands; in another sense, however, the bill does quite a bit.

Repeal Of DOMA

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First, RFMA repeals the Defense of Marriage Act (DOMA), which, without the passing of RFMA could have been restored as the law of the land if Obergefell and an earlier case called Windsor were reconsidered and overturned. DOMA once provided that “no State, territory, or possession of the United States or Indian tribe shall be required to give effect to any marriage between persons of the same sex under the law of any other jurisdiction or claim arising from such relationship.” RFMA will now toss out DOMA, and require the opposite — recognition of valid marriages (regardless of the sex of the parties) by other states and the federal government.

So What Exactly Does RFMA Require?

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Under the section entitled “Full Faith and Credit Given to Marriage Equality” (that sounds good!), the law provides that “No person acting under color of State law may deny — (1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals on the basis of the sex, race, ethnicity, or national origin of those individuals”; and “(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.”

Great!

Religious Exemptions

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While RFMA protects the recognition of valid marriages from one state to another, it also carves out strong religious exemptions. It states unequivocally that “Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”

And, more specifically, nonprofit religious organizations, ministries, and faith-based social agencies (among the list), are not required to provide “services, advantages, facilities, goods, or privileges for the solemnization or celebration of marriage.” So for those refusing to bake a cake or compose a website for a couple’s wedding based on status in one of these categories, RFMA is not helpful for the soon-to-be married couple. (Of course, state laws can still impose such duties.)

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Celebrations And Concerns

I spoke with Diane Hinson and Deborah Wald, each legal experts in assisted reproductive technology with legal practices protecting same-sex couples and their families. Hinson was clear that RMFA is to be celebrated and that it is a sign that our country has taken significant steps forward. However, she also worried the need for RMFA stems from the reality that the Supreme Court may soon revisit Obergefell.

Hinson explained that 35 states have laws on the books banning marriage on the basis of the sex of the individuals. Those bans would be immediately effective again, despite RFMA, if Obergefell is overturned. Moreover, RFMA does not prevent any state, including those states currently without law on point, from disallowing marriage on the basis of sex, race, ethnicity, or national origin of the individuals.

Family Protection Steps Needed

“We are glad to see the federal government acting to protect all marriages, regardless of sexual orientation or race,” Wald explained. “However, it is important for same-sex couples having children together through assisted reproduction not to conflate marriage protection with parentage protection.” While being married may be enough to get both spouses’ names on a birth certificate, Wald emphasized that a birth certificate does not prove parentage. That requires a court judgment. Wald advised that “whether through a parentage action or an adoption, every person raising a child not biologically related to them needs a judgment protecting that parent-child relationship in order to assure protection in all states — and this is particularly true for more vulnerable parenting populations, including LGBTQ+ parents. That was true before Obergefell, it was true between Obergefell and Dobbs, and it remains true today, regardless of the passage of the Respect for Marriage Act.”

Critics may predict it is unlikely that the Supreme Court will overturn Obergefell. But when your family is stake, there is no room for games of chance or for simply playing the odds.

So let’s definitely celebrate this win for love. But it’s still not time to rest.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

Topics

Assisted Reproductive Technology (ART), Ellen Trachman, Family Law, RFMA