By Connor Burton and Matt Yost
On December 13, 2022, President Joe Biden signed the Respect for Marriage Act1 into law in a public ceremony held on the White House lawn featuring performances by the Gay Men’s Chorus of Washington, D.C, Sam Smith, and Cyndi Lauper.
This new law supersedes in part the 1996 Defense of Marriage Act (DOMA). That measure, signed into law by President Bill Clinton, held that a same-sex marriage solemnized under the laws of one U.S. state, territory, possession, or tribe did not require recognition in any other U.S. state, territory, possession, or tribe; and further defined the word “marriage” as a legal union between one man and one woman as husband and wife, and the word “spouse” as referring only to a person of the opposite sex who is a husband or a wife on a federal level.2
On June 26, 2015, the United States Supreme Court issued its decision in Obergefell v. Hodges,3 holding that the Fourteenth Amendment’s due process and equal protection clauses required all states to recognize marriage equality for LGBTQ+ people. National marriage equality had been the culmination of over fifty years of evolution in constitutional law, the collective understanding of family, and religious teaching. The Obergefell decision superseded the second section of DOMA, leaving it unenforceable. However, even after Obergefell, LGBTQ+ persons have faced obstacles to equal treatment and uncertainty remained regarding the permanence of a judicially crafted right.
Many observers have heralded the Respect for Marriage Act as enshrining the right to same-sex marriage in federal law. But a review of the text of the Respect for Marriage Act and the legal precedent that it is built upon reveals its limitations.
The codification of Windsor and Loving at a federal level
In Loving v. Virginia,4 decided in 1967, the U.S. Supreme Court ruled that laws banning interracial marriage violate the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution. In the unanimous decision, Chief Justice Earl Warren opined that “[m]arriage is one of the basic civil rights of man, fundamental to our very existence and survival.”5 The Court held that states could not deny such a “fundamental freedom on so unsupportable a basis as the racial classifications embodied” in these anti-miscegenation laws.6 Such racial classifications were “directly subversive of the principle of equality at the heart of the Fourteenth Amendment[.]”7 Depriving interracial couples of the fundamental right to marry was “surely to deprive all the State’s citizens of liberty without due process of law.”8
The decision in Loving explicitly overturned the previous Supreme Court precedent of Pace v. Alabama,9 an 1883 decision that found Alabama’s miscegenation statute constitutional because it applied equally to both “whites” and “non-whites” alike, since the punishment for violating the statute was the same regardless of the offender’s race.10 The Court in Loving rejected this “equal application” argument and held miscegenation laws to be unconstitutional.11
In 2013, in United States v. Windsor,12 the U.S. Supreme Court held section three of DOMA to be unconstitutional under similar principles. In a 5-4 decision, Justice Anthony Kennedy, writing for the majority, cited the propositions of state autonomy, equal protection, and liberty, holding:
“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”13
While the Windsor decision determined that the federal definition of marriage as between one man and one woman was unconstitutional, the second section of the DOMA remained in full force and effect until 2015.
The Respect for Marriage Act does not codify Obergefell
In holding that state same-sex marriage bans violated the due process and equal protection clauses, the majority in Obergefell cited Loving and Windsor as precedents regarding the fundamental right to marry.14 The Obergefell decision made the second section of DOMA unconstitutional, rendering DOMA a dead act.
The Respect for Marriage Act picked up where Obergefell left off. By its text, the Respect for Marriage Act forbids the denial of full faith and credit to a marriage between two parties “on the basis of sex, race, ethnicity, or national origin[.]”15 Additionally, it establishes a presumption that an otherwise legal marriage between two individuals is considered valid under federal law, rule, or regulation. The Act, therefore, legislatively recognizes the judicial precedents laid down in Loving and Windsor.
Essentially, the Respect for Marriage Act codifies much of the current legal landscape surrounding marriage created by the Supreme Court in Loving, Windsor, and Obergefell. A risk remains that the Supreme Court may overturn Obergefell, at which time individual states could once again return to refusing to perform same-sex marriages (since the federal government cannot force states to codify same-sex marriage). However, because of the Respect of Marriage Act, individual states cannot deny benefits or recognition to parties who are or were otherwise legally married in states that have separately codified same-sex marriage.
The Respect for Marriage Act in Minnesota
In 2011, the Minnesota Legislature passed identical bills placing a proposed constitutional amendment banning same-sex marriage on the 2012 general election ballot.16 On November 6, 2012, voters rejected the proposed amendment, with 47.44 percent voting in favor.17
In the next legislative session, the issue was taken up again, but this time with legislation focused on legalizing same-sex marriage. A bill legalizing same-sex marriage passed both chambers of the Legislature,18 and on May 14, 2013, Gov. Mark Dayton signed the bill into law.19 Same-sex marriage has been legal statewide in Minnesota since August 1, 2013, with civil marriage defined as “a civil contract between two persons, to which the consent of the parties, capable in law of contracting, is essential.”20
Because same-sex marriage is codified clearly and separately under state law, and because Minnesota has never banned interracial marriage, the Respect for Marriage Act exists as a secondary, rather than primary, legal protection for same-sex and interracial couples. A hypothetical overturning of Obergefell (or even Windsor or Loving) would not invalidate or erode the existing marital contract between same-sex couples in Minnesota.
Conclusion
At the time Loving was decided, 16 states still codified laws forbidding interracial marriage.21 The last of these laws was not repealed until 2000.22
While same-sex Minnesotans’ marital rights have enjoyed a codified certainty for almost 10 years, laws banning same-sex marriage and refusing to recognize foreign same-sex marriages exist in all four of Minnesota’s neighboring states.23 Should Obergefell ever be overturned, same-sex couples in these and other states may rely on Minnesota’s laws to legally validate their marriages. Per the Respect for Marriage Act, a state with a same-sex marriage ban could not refuse to recognize a legal same-sex marriage performed in a state like Minnesota, providing a layer of certainty, security, and consistency for couples, regardless of where they live.
For states like Minnesota, the benefit of the Respect for Marriage Act is largely symbolic. Symbolism, however, cannot be discounted. To many contemporary observers, decisions such as Loving and Windsor and Obergefell were fantastical and unfathomable. Even years and decades removed, the tenuousness of judge-made law still leaves these decisions feeling delicate and illusory. In that reality, a strong nationwide statement of values, such as the Respect for Marriage Act, serves as a clear and unifying force against bigoted rhetoric, providing concrete stopgaps to families across the country and bending the moral arc of what is possible and achievable toward greater equity.
Matt Yost is an associate attorney practicing family law at Messick Law, PLLC. Matt serves as a volunteer attorney with Tubman and the Children’s Law Center and is a board member of Family Law League.
Connor Burton is an associate attorney at Messick Law, PLLC with a focus on civil litigation matters. He currently serves as the Washington County Bar Association treasurer and as a Rice County Conciliation Court referee.
Notes
1 Respect for Marriage Act, Pub. L. No. 117-228.
2 1 U.S.C. §7.
3 576 U.S. 644 (2015).
4 388 U.S. 1 (1967).
5 Id. at 13 (citations omitted).
6 Id.
7 Id.
8 Id. at 12 (citations omitted).
9 106 U.S. 583 (1883).
10 Id. at 585.
11 Loving, 388 U.S. at 10 (citations omitted).
12 570 U.S. 744 (2013).
13 Id. at 772.
14 Obergefell, 576 U.S. at 644; id. at 666.
15 Respect for Marriage Act, Pub. L. No. 117-228.
16 Laws of Minnesota, Chapter 88, S.F. No. 1308.
17 Minnesota Secretary of State. Results for Constitutional Amendments, Minnesota Secretary of State (https://electionresults.sos.state.mn.us/Results/AmendmentResultsStatewide?ersElectionId=1&scenario=state) (accessed 12/19/2022).
18 Laws of Minnesota 2013, Chapter 74, H.F. 1054.
19 Id.
20 Minn. Stat. §517.01.
21 Srikanth, Anagha (6/12/2020). “The origins of Loving Day explained”. The Hill (https://thehill.com/changing-america/respect/diversity-inclusion/502540-the-origins-of-loving-day-explained/) (accessed 12/20/2022).
22 Id.
23 N.D. Const. art. XI, §28; S.D. Const. art. XXI, §9; S.D. Codified Laws §§25-1-1, 25-1-38; Iowa Code §§595.2, 595.20; Wis. Const. art. XIII, §13.