The Respect for Marriage Act (RMA) has passed the U.S. House and now heads to President Joe Biden for his signature. The RMA is important legislation that clarifies rights and protections for same-sex and interracial marriages—but does not guarantee that all states will continue to let same-sex couples marry. It also does not remove the need for many LGBTQ parents to take additional steps to secure their legal parentage.
The House passed the RMA yesterday in a bipartisan 258 to 169 vote. Although the House had passed an earlier version in July, the Senate version that passed last month included amendments to add affirmations of religious liberty and to ban polygamous marriages, so the House had to reapprove.
The RMA will minimize the harm if the U.S. Supreme Court overturns its rulings requiring marriage equality in all states (Obergefell) and/or federal recognition of same-sex couples’ marriages (Windsor), as Justice Clarence Thomas hinted could happen. Thirty-five states still have statutes or constitutional amendments banning marriage for same-sex couples (per the Movement Advancement Project), which would presumably go into immediate effect if Obergefell is overturned. The RMA ensures that if this happens, the federal government will continue to recognize same-sex couples’ marriages. It also prohibits states from denying full faith and credit to an out-of-state marriage because of the sex, race, ethnicity, or national origin of the individuals in the marriage.
Two key things to remember, though:
- As of this writing, marriage equality is still legal in all 50 states.
- The RMA does not mandate marriage equality in all states. If Obergefell is overturned, there are states that could lose it.
Additionally, queer parents and parents-to-be should note that if you are a nonbiological or nongestational parent, being on your child’s birth certificate has never been enough to guarantee you parental recognition in all states, even if you are married. When a married, nonbiological/nongestational parent is placed on a birth certificate without an adoption, court order of parentage, or equivalent, it is because the state recognizes the marriage and presumes any children of that marriage to be children of both spouses. The danger is if the nonbiological parent travels to a jurisdiction that doesn’t recognize the marital presumption for someone who’s not biologically related to that child, as GLAD Director of Family Advocacy Polly Crozier explained to me in an interview in 2020.
And as Alison Gash has written at the Washington Post, “The Respect for Marriage Act won’t fully protect same-sex parents.” In short, Gash notes that “Court rulings differentiate between a state’s constitutional requirement to ‘recognize’ vs. ‘enforce’ another state’s policies or rulings.” This could mean that if Obergefell falls, authorities in anti-LGBTQ states could still try to refuse marriage- or parenting-related claims from same-sex couples. Whether they’d succeed is an open question, as is what that might look like or how any given state would act in particular circumstances, but they could make life very difficult for many children and their parents.
I am not a lawyer and don’t even play one on TV. Here’s what I do know, however: Confirmatory adoptions, co-parent/second-parent adoptions, stepparent adoptions, or court orders of parentage or the equivalent have long been recommended by LGBTQ legal organizations because they receive “full faith and credit” across state lines in ways that birth certificates don’t. I hope you’ll read (or reread) my July interview with GLAD’s Crozier and the National Center for Lesbian Rights’ Julie Gonen (who are lawyers) on “How LGBTQ Parents Can Protect Their Families After Dobbs” for more important information, and consult with an attorney well-versed in LGBTQ family law in your state if you need or are wondering if you need further protections.
Nevertheless, the RMA is a needed (albeit imperfect) bill and its bipartisan support is a step forward. Do we still need a federal law requiring all states to uphold marriage equality? Yes. Do we still need to pass the Equality Act to expand federal civil rights laws to cover sexual orientation and gender identity? Yes. Do we still need to pass legislation like the Massachusetts Parentage Act to better protect children in all families, whether the parents are LGBTQ or not, married or not? Yes. But the RMA is nonetheless necessary at our current political moment. Congratulations to all of the representatives, senators, and other advocates who helped make it happen—not least of whom are the everyday folks who called their members of Congress to explain why the bill was important to them. If you’re one of them, thank you!
Got questions? The three major LGBTQ legal organizations have answers. They each offer helplines that can address questions, provide referrals, and direct you further: