Groups argue ‘Respect for Marriage Act’ is unconstitutional



Several groups argue the Respect for Marriage Act (ROMA) currently before the U.S. Senate is unconstitutional, and if enacted, will eventually be struck down by the U.S. Supreme Court.

The bill, HR 8404, was introduced in the House by U.S. Rep. Jerry Nadler, D-NY, on July 18 and passed by a vote of 267-157 the next day. The U.S. Senate took it up on Nov. 14.

It would provide “statutory authority for same-sex and interracial marriages” and repeal several provisions of the 1996 Defense of Marriage Act (DOMA). The 1996 law received bipartisan support including from then U.S. Sen. Joe Biden and U.S. Rep. Chuck Schumer, D-NY, and from Democratic President Bill Clinton, who signed it.

When a constitutional amendment was proposed to ban same-sex marriage in 2006, Sen. Biden told Meet the Press’ Tim Russert, “I can’t believe the American people can’t see through this. We already have a law, the Defense of Marriage Act … where I voted and others … that marriage is between a man and a woman and states must respect that. … Why do we need a constitutional amendment? Marriage is between a man and a woman.”

Sixteen years later, President Biden now supports replacing DOMA provisions, which “define, for purposes of federal law, marriage as between a man and a woman and spouse as a person of the opposite sex,” with ROMA provisions “that recognize any marriage that is valid under state law,” according to the bill summary.

The summary also notes that the Supreme Court ruled three marriage-related laws as unconstitutional: DOMA (U.S. v. Windsor, 2013) and state laws banning same-sex marriage (Obergefell v. Hodges, 2015) and interracial marriage (Loving v. Virginia 1967).

The bill would also allow “the Department of Justice to bring a civil action and establishes a private right of action for violations,” its summary states.

When filing a cloture motion on a substitute amendment on Nov. 17, now Senate Majority Leader Schumer said the Senate would vote on ROMA when it returned on Monday after Thanksgiving. He said, “Let me be clear,” passing it “is not a matter of if but only when.” He also thanked his colleagues from both sides of the aisle “who led this bill.”

Twelve Republicans voted with Democrats to allow it to move forward, eliminating a filibuster threat: Sens. Roy Blunt, Richard Burr, Shelley Capito, Susan Collins, Cynthia Lummis, Rob Portman, Mitt Romney, Dan Sullivan, Thom Tillis, Joni Ernst, Lisa Murkowski, and Todd Young.

After their vote, Biden said, “Love is love, and Americans should have the right to marry the person they love,” adding their vote made “the United States one step closer to protecting that right in law.”

Schumer also said he had “zero doubt” the bill “will soon be law of the land.”

But multiple groups disagree, arguing it’s unconstitutional for the same reasons the Supreme Court struck down DOMA. Because the court already ruled Congress doesn’t have the constitutional authority to define marriage under Article 1 of the U.S. Constitution, and because ROMA is nearly identical to DOMA, they argue it will also likely be struck down.

In a letter to Congress, the nonprofit religious freedom organization Liberty Counsel argues the court ruled in Windsor, “DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.” It also ruled, “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.”

Liberty Counsel Founder and Chairman Mat Staver, said, “The Constitution cannot be said to prohibit the exercise of power to define marriage in one manner yet authorize the opposite definition of that same unconstitutional exercise of power. If Windsor noted that Congress lacked authority in this realm, then it necessarily lacks the power here.”

While a bipartisan amendment was introduced claiming to protect religious liberty, Sen. Mike Lee, R-Utah, argues it really doesn’t.

“Religious Americans will be subject to potentially ruinous litigation, while the tax-exempt status of certain charitable organizations, educational institutions, and non-profits will be threatened. My amendment would have shored up these vulnerabilities,” he said.

Heritage Foundation President Kevin Roberts said, “Conservatives are deeply disappointed by the betrayal of Senate Republicans to protect Americans’ religious freedom and won’t soon forget the votes of the 12 Republican senators who cast aside an essential right in a bill that will weaponize the federal government against believers of nearly every major religion.”

Gregory Baylor, senior counsel with Alliance for Defending Freedom, also said the law is “unnecessary and could have a disastrous effect on religious freedom. While proponents of the bill claim that it simply codifies the 2015 Obergefell decision, in reality it is an intentional attack on the religious freedom of millions of Americans with sincerely held beliefs about marriage.”

It also “threatens religious freedom and the institution of marriage” by codifying a “false definition of marriage in the American legal fabric,” ADF argues. It also “opens the door to federal recognition of polygamous relationships, jeopardizes the tax-exempt status of nonprofits that exercise their belief that marriage is the union of one man and one woman, and endangers faith-based social-service organizations by threatening litigation and liability risk if they follow their views on marriage when working with the government.”


  1. Of course it is. But that doesn’t matter anymore.

    We are in a post Constitutional society where rules are golden. The left has the gold and therefore makes the rules.

  2. I guess the term can’t leave good enough alone… This will end up in the supreme court, and gay marriage will be struck down, The Supreme court will say gay marriage is a State issue just like abortion is. Everyone will stand around with that dumb look trying to figure out why it was struck down.. In other words this is a bad legislation, if you are democrat you would be pleading with your representatives to vote no. If passed, again this is headed straight to the Supreme court.

    • It’s as if they want the world to burn. Dems have been predicting a supreme court ruling to throw gay marriage back to the states. Now a spotlight is being put on it that will force a decision from the high court. Nobody on the left will accept the decision to let states decide and more riots will ensue. Seems pretty clear to me.

    • I think you are wrong on this. SCOTUS struck down a decision they made 50 years ago with Roe v Wade, not a law that congress had established.

      With this “Respect for Marriage Act” congress is establishing a law. They are doing their job, whether you like what they did or not, they establish laws.

      A SCOTUS decision of the past is not the same as a law passed by congress. Abortion’s ruling was able to be overturned because congress had not established a law enshrining it on the books. With this act being passed, congress has established this as law

    • Or, can a man marry his brother? Or a sister her sister? This way family members could secure health and retirement benefits for each other from their employers. Easy scams. Could I marry my golden retriever? As long as I love him?

  3. The idea is to destroy the Biblical basis for law, not just marriage, and thus the foundation and security of society and government. Who wants that? The devil and his communist servants. This has nothing to do with “love”, Joe Biden. brandon couldn’t define love if he wanted to. Try 1John 3:16. A thorough definition of love will take more space than MRAK will allow in a comment…

    • The US Constitution which is the basis for our laws does not reference the Bible, but it does say “All men are created equal”

      • Actually that was the Declaration of Independence. The US Constitution does provide for equal treatment of citizens. Using Bibles, the Koran and other religeous documents as law is a threat to Democracy IMO

        • You obviously are not familiar with our Founders writings or their faith in God.
          “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”
          Creator = The Bibles God

          And please understand that the continual brainwashing that we are a Democracy is utterly false! We are a Constitutional Republic, and the Constitution is the ultimate “Law of the Land”. A Democracy is a mob rule society, where a Republic is guided by specific principles that empower each citizen with rights from birth. Those principles come from the Word of God, the Bible. That is why our Founding Fathers wrote the Constitution and codified our 1st Amendment to protect our ability to worship God freely without persecution from the government.

      • The only thing you understand less than religion is history.

        I guess willful ignorance is best for you.

  4. What’s even more disturbing other than slick Willy politicians, is the fact that there’s that many people outside of politics that support this kind of thing. You know how they say that the aliens are already walking amongst us? What’s Awakening is that these freaks have been walking amongst us for years and maybe decades and we never knew it. We never knew they were sitting beside us in church, we never knew they were behind us in line at Walmart, we never knew anything about anything until the Great Awakening. Now they’re popping up everywhere emerging from the closet. I think America is doomed and outnumbered and in the end, a couple hundred years from now, we may all be speaking Chinese. So live the dream as long as you can because the end days are approaching and Jen, don’t take that to be biblical. This issue has probably always been with us dating back to when Benjamin Franklin used to attend those orgies and private get togethers to gain support. Secret societies have been governing us for quite a long time.

  5. This is a state issue. Senate bill not needed. Both Alaska senators are supporting this bill. Are they really representing Alaska constituents or themselves?

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