The Respect for Marriage Act (RMA) would repeal DOMA and provide that any marriage that was entered into legally in the place of celebration would be recognized by the federal government as a valid marriage. The bill was introduced in the House and the Senate in March of 2011. Tomorrow, July 20, the Senate Judiciary Committee will hold hearings on the bill.
There are 118 cosponsors of the bill in the House (H.R. 1116), where it has been buried in the House Subcommittee on the Constitution. There are 27 cosponsors for the Senate Bill (S. 598) and Senator Feinstein predicts that the Senate Judiciary Committee has the votes to report the bill out of committee. See story here.
The bill is simple. See text here. Once a valid marriage has been entered into, that marriage must be recognized by the federal government – even if the couple then moves to a state that does not recognize the marriage. In fact, even if a couple is currently residing in a state that does not recognize same-sex marriage, they can travel to a recognition state to celebrate a valid marriage. The text of the bill provides that the law of the state of celebration will be determinative. There is nothing terribly unusual about this rule. Until the advent of same-sex marriage, the universal conflict of laws principle regarding the validity of a marriage was that the law of the place of celebration determined the validity. In our jurisprudence, states are free to make a different determination as to whether the law of the state of celebration is to be honored. But the federal government can make its own determination as to which marriages to honor. It did that when Congress enacted DOMA. And now RMA would create a new rule.
I fully support the RMA. But it is worth pointing out that even if Congress were to enact this law, problems caused by the different state laws regarding same-sex marriage would continue. Alice and Eve may be married in Massachusetts or Iowa, but if they live in Virginia, they will receive no state recognition. They won’t even be able to get a divorce. Strange tensions could arise between state and federal law. Even if their relationship is over, they will still be married. ERISA will require Alice’s pension plan to name Eve as beneficiary even though they are not married in Virginia. And if Alice dies, Eve will likely be entitled to a spouse’s share of social security. The way to avoid these rules is to end the marriage. But RMA only provides for recognition of marriages. It has no accompanying divorce mechanism.
RMA is a step in the right direction, but there will be no workable permanent solution until all 50 states accept the place of celebration rule and treat same-sex married couples equally with other married couples.
