F or reasons of polarization and political theater, bipartisan legislation has fallen out of fashion of late. Yet, on a theme as historically divisive as the institution of marriage — a theme which has been a source of bipartisan inertia and hypocrisy over the years — Democrats and Republicans have stumbled upon some common ground and mutual respect. Bursting onto the senatorial scene in 2009, the Respect for Marriage Act (RFMA) situated itself as an attempt to repeal the 1996 Defense of Marriage Act (DOMA): an infamous piece of legislation, introduced by Congressman Bob Barr and enacted by President Bill Clinton, which limited the federal definition of “marriage” to the union of one man and one woman. After 13 years, the RFMA is set to become law, and though flawed, it’s a big step in the right direction.

Despite the early momentum behind RFMA, as well as the conveniently belated support from Clinton and Barr themselves, the passing of the RFMA had long proved a task too Sisyphean for the Senate. Though the initial six years of inertia are difficult to explain — to explain charitably, at least — the inaction following the 2015 Obergefell v. Hodges decision, which required all states to recognize same-sex marriage, can be chalked up to the calculated complacency of the Democratic Party. With the states legislatively straitjacketed, the RFMA had become de facto federal law; which is to say, not a hill worth spending political capital on. That was, until June of 2022 — for with the overturning of Roe v. Wade, paired with the brooding remarks of Justice Clarence Thomas, all things de facto have suddenly ceased to be so.

Now, 13 years after Representative Jerry Nadler first introduced the bill to Congress, the passing of the RFMA is no longer a pipedream. Following a healthy 61-to-36 vote in the Senate, whose yay-ers contained 12 Republicans, a newfangled version of the RFMA passed the House and was then signed into law by President Biden. The new version has not only garnered unprecedented levels of support within the Republican Party, but unusual levels of approval within the religious community. All of which should not only raise a few eyebrows, but a couple of questions, too. Firstly, what exactly is this bill? And secondly, what is it not?

Though late, the resurgence of the RFMA is timely. There are 35 states with “trigger laws” on the books banning same-sex marriage, laws that would, in the words of Northwestern University law professor Andrew Koppelman, “spring back into life if Obergefell v. Hodges were overruled.” For the more than half a million same-sex marriages in the United States, apprehension is justified. Even placing Obergefell v. Hodges to one side, with the overturning of Roe v. Wade, legal experts say the Supreme Court ruling has left a slew of other civil rights vulnerable to renegation: namely, the right to interracial marriages (Loving v. Virginia), the right to contraception (Griswold v. Connecticut), and the right to sexual relationships between members of the same sex (Lawrence v. Texas).

Luckily for advocates of the RFMA, however, conditions have never been so ripe. As of 2022, approval of interracial marriage in the United States has almost reached the 95% mark, while approval of same-sex marriage has risen from 53% in 2011 to 71% in 2022. Yet, despite the strong mandate, whose strength made possible the amendment of added protections for interracial marriage, the RFMA is not merely an updated and codified version of Obergefell+.

To quote the famous mantra of economist Thomas Sowell, “There are no solutions, only tradeoffs.” Along this vein, the specifications of the RFMA are bipartisan in the truest, muddiest sense of the word. For one, the legislation will not oblige states to issue same-sex marriages, but merely require state legislatures to recognize same-sex marriages certified elsewhere. Thus, if Obergefell were overruled, and these trigger laws take effect — laws which a number of Republicans vow to uphold — same-sex couples in those states would be forced to marry out of state and then return home. Unnecessary rigmarole and red tape, sure. Yet, with the passage of the RFMA, for the first time in the history of the United States, both same-sex and interracial newlyweds will be recognized under federal law, thereby qualifying for benefits such as Medicare and Social Security. Not perfect, but progress.

In addition, as part of the agreement that secured the levels of GOP support necessary to break a Senate filibuster, the RFMA guarantees nonprofit religious organizations the right to abstain from providing goods or services for wedding ceremonies and receptions (with the added guarantee that any such abstention will not result in any 501(c)(3) organization losing its tax-exempt status). “None of these were likely to happen,” writes Kopellman, “but the religious right was worried about them, and anything that diminishes conflict over this issue is good for the country.”

Though the federal definition of marriage has relaxed its qualitative dimensions, however, its quantitative dimensions have refused to budge. Again at the behest of the religious caucus, polyamorous marriages remain off the table. Indeed, of all the conditions likely to loosen over the coming years, those surrounding polyamory will likely be the last to go, for the legislation explicitly prohibits the inclusion of such marriage arrangements. On this point, despite having broken with the herd regarding the “morality” of same-sex marriages, even the more liberal-minded members of the religious caucus are unyielding and unitedly so. Until the needle of that compass changes, or unless religious America loses its grip on the levers of government, marriage will remain a reservation for two.

From start to finish, this most recent push to (finally) get the RFMA onto the president’s desk has been an exercise in realpolitik; a return to the middleground handshakes of governments old. Sport, not war. Yet, for the militarily-minded fringes, the RFMA either drastically underachieves or dramatically overreaches. Indeed, Senator Tammy Baldwin’s masterstroke — delaying the bill until after the midterm elections, which spared the likes of Senators Marco Rubio and Ron Johnson of Wisconsin from having to take any electoral risks — was met with consternation by the self-styled progressive wing of the Democratic party. Yet, this is the very species of perfectionism — dare I say, puritanism — that gridlocked the RFMA for so long in the first place. Now, at last, the lives of hundreds of thousands of married couples are finally en route to embetterment. Not thanks to perfectionism, mind you, but progressivism in the truest sense of the word.

Published Dec 5, 2022
Updated Dec 15, 2022