The Respect for Marriage Act (RFMA), which codifies protection for same-sex marriage, is about to be signed by President Biden. It protects hundreds of thousands of families, but it does more than that. It is a step away from America’s political polarization. That’s not just because Congress managed to get something important done on a bipartisan basis. For the first time on the federal level, gay people and conservative Christians, who have each long regarded the other with bitter suspicion, found a way to work together. It is a step toward healing one of the most toxic divisions in American politics.
The bill, which requires states to recognize same-sex marriages celebrated in other states, had languished in Congress since 2009. It seemed obsolete after the Supreme Court declared such marriages were a constitutional right in 2015 in Obergefell v. Hodges.
That was all changed by Supreme Court Justice Clarence Thomas’s recklessly irresponsible statement in his concurring opinion in the case that reversed Roe v. Wade. Thomas observed that Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage, rested on a rationale similar to Roe. He said he hoped the Court would reverse that, too.
This terrified the more than half a million married same-sex couples in the United States. (Justice Brett Kavanaugh, in a separate concurrence, argued that the abortion decision “does not threaten or cast doubt” on the earlier marriage decision, but understandably not everyone was reassured.) Thirty two states still have laws on the books that ban same-sex marriage, laws that would spring back to life if Obergefell were overruled.
RFMA, using Congress’s power to prescribe the interstate effect of state laws, requires states to recognize same-sex marriages performed in other states. If Obergefell were overruled, and some states stopped issuing licenses (as some politicians want), couples in those states would have to travel, get married and come home. That is awkward, but not as bad as having the law treat one’s family as if they were strangers to one another. Their home state would have to recognize the marriage, and so would federal law for all purposes, such as Medicare and Social Security.
The bill envisions an America that has a place for both gay people and those who believe, for religious reasons, that homosexual sex is morally wrong. It wisely declares: “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious premises.” As part of the deal that secured the Republican support needed to break a Senate filibuster, it confirms that nonprofit religious organizations will not have to provide goods, services or facilities for wedding ceremonies or receptions. It excludes recognition of polygamy. It guarantees that churches that don’t recognize same-sex marriages will not lose their tax-exempt status. None of these were likely to happen, but the religious right was worried about them, and anything that diminishes conflict over this issue is good for the country.
The Mormon church, the Council for Christian Colleges and Universities, the Union of Orthodox Jewish Congregations of America and the National Association of Evangelicals all endorsed the bill.
Most Republicans voted against it, claiming that it is, as Sen. Marco Rubio (R-Fla.) put it, a “stupid waste of time.” The bill is in fact urgent, because a conservative judge has irresponsibly terrified more than 1 million Americans with a threat to attack their families.
The bill is valuable for another reason. It is the first piece of federal legislation that balances the needs of same-sex couples and of the conservative religious groups whose teachings condemn homosexual conduct.
In the long political fight over same-sex marriage, many on each side came to believe that their opponents were evil and motivated by irrational hatred — either hatred of gay people or hatred of conservative Christians. There are indeed extremists on each side with repressive aspirations, and each side is reasonably frightened by the worst and sometimes most visible representatives of the other.
Most Americans, however, would like to live in peace with their fellow citizens, and are willing to consider and, if possible, accommodate other people’s perspectives and fears. (I so argued in my 2020 book, “Gay Rights vs. Religious Liberty? The Unnecessary Conflict.”)
This is an issue that divides decent people who honestly hold radically differing views about what a good life requires. Religious toleration means, precisely, that we tolerate views about the meaning of life that we regard as wrong and repugnant. We learned that in the religious wars of the 17th century. We are learning it again. That is very good news.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.