On December 13, 2022, President Joe Biden signed the Respect For Marriage Act (H.R. Bill 8404)(“RFMA”) into law. This landmark federal legislation repeals the remnants of the Defense of Marriage Act (DOMA) and requires the U.S. government and all states and territories to recognize the validity of same-sex and interracial marriages in the United States. This new statute codifies part (but not all) of the U.S. Supreme Court ruling in Obergefell v. Hodge, 576 U.S. 644; 135 S.Ct. 2584; 192 L.Ed.2d 609 (2015) which held that the Fourteenth Amendment requires all U.S. states to allow and recognize same-sex marriage. After Justice Thomas wrote in a concurring opinion in Dobbs v Jackson Women’s Health Organization, 597 U.S. __ (2022) that the U.S. Supreme Court “should reconsider” the Obergefell decision, many politicians on both sides of the aisle interpreted this as a call to action and moved quickly to protect same-sex and interracial marriage to the extent permissible under federal law.
What exactly does the Respect For Marriage Act of 2022 (“RFMA”) provide for? What impact will it have on Michigan law? This blog article will address both of these questions.
WHAT DOES THE RESPECT FOR MARRIAGE ACT OF 2022 SAY?
In Section 2 of the RFMA, Congress makes the following findings:
- “(1) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”
- “(2) Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
- “(3) Millions of people, including interracial and same-sex couples, have entered into marriages and have enjoyed the rights and privileges associated with marriage. Couples joining in marriage deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.”
The RFMA makes the following modifications to federal law:
- The Remainder of the Defense of Marriage Act (DOMA) Is Repealed: Section 3 of the RFMA explicitly repeals old 28 U.S.C. §1738C which was the remaining remnant of DOMA.
- Full Faith And Credit Given To Marriage Equality: Section 3 of the RFMA creates a new 28 U.S.C. §1738C which provides as follows:
- “No person acting under color of State law may deny 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; or 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.” 28 U.S.C. §1738C(a) [also called “subsection (a)].
- “The Attorney General may bring a civil action in the appropriate United States district court against any person who violates subsection (a) for declaratory and injunctive relief.” 28 U.S.C. §1738C(b).
- “Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief.” 28 U.S.C. §1738C(c).
- Marriage Redefined Under Federal Law: Section 5 of the RFMA amends 1 U.S.C. §7 to read as follows:
- “For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is between 2 individuals and is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is between 2 individuals and is valid in the place where entered into and the marriage could have been entered into in a State.” 1 U.S.C. §7(a) [also called “subsection (a)].
- “In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.” 1 U.S.C. §7(b).
- “For purposes of subsection (a), in determining whether a marriage is valid in a State or the place where entered into, if outside of any State, only the law of the jurisdiction applicable at the time the marriage was entered into may be considered.” 1 U.S.C. §7(c).
- Religious Liberty Protected And No Religious Entity Can Be Required To Provide Services To Solemnize Or Celebrate Marriage: Section 6 of the RFMA enforces the constitutional protections of separating church and state by not compelling religious entities to participate in providing goods and services to marriages that they find objectionable. “Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal… to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.”
- No Federal Recognition Of Polygamous Marriages: Section 7(b) of the RFMA explicitly denies federal recognition of any polygamous marriages (e.g. marriages between more than 2 individuals).
Basically, the RFMA requires states to recognize valid same-sex marriages and interracial marriages performed in other states, but does not go as far as to say that the individual states are compelled to allow same-sex marriages to be performed within their own borders (although the Obergefell v. Hodge decision currently compels this). If the U.S. Supreme Court overrules Obergefell, then the RFMA does not require states to allow same-sex marriage to be performed and they could decide to permit those ceremonies on their own accord.
WHAT IS THE STATUS OF MICHIGAN LAW ON SAME-SEX MARRIAGE?
In the November 2004 general election, voters approved Proposal 04-2 which added a constitutional amendment to the 1963 Constitution of Michigan prohibiting same-sex marriage. Effective December 18, 2004, the amendment provides that, “[t]o secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Mich. Const. 1963, Art. I, §25.
This constitutional amendment initiated by popular referendum only codified and reinforced statutes that were already enacted by the Michigan Legislature and signed by the governor. Effective June 26, 1996, the following definition of marriage was adopted as state law:
- “Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.” MCL 551.1.
Both this constitutional amendment and statute remain on the books and not only disallow same-sex marriages from being performed in Michigan but also do not recognize same-sex marriages performed in other locations. All of these state restrictions are currently suspended since the holding in Obergefell v. Hodge came to force in 2015.
Should Obergefell be overruled by the U.S. Supreme Court in the future, this constitutional amendment and statute would become partially reactivated and the RFMA would only provide some protection for same-sex marriage in Michigan. To its credit, the RFMA would compel Michigan to continue to recognize the valid same-sex marriages performed previously within its borders and all of those outside of the state. However, the RFMA cannot force Michigan to allow same-sex marriages to be performed and validated within its own borders if Obergefell is overruled. The only way that all of the guarantees provided in Obergefell can be preserved is if Michigan voters take the initiative to further amend the 1963 Michigan Constitution of 1963 and repeal the 2004 amendment. Otherwise, any attempts to modify the statutes by the Michigan Legislature would be superseded by the existing constitutional amendment prohibiting same-sex marriage.
OUR SKILLED FAMILY LAWYERS ARE AVAILABLE TO HELP YOU
Marriage and family law in Michigan continues to evolve as state and federal statutes are amended or modified by legislative action and court opinions. Our law firm stays on top of these development and we are available to provide information about the changes in this very dynamic area of the law.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.