The Senate has passed the Respect for Marriage Act, a piece of legislation that will codify (arrange laws to guarantee) the right to same-sex and interracial marriage, now the bill heads to the House for a vote.
Congress, in an attempt to pressure states to ban same-sex couples from being able to marry, passed the Defense of Marriage Act (DOMA) in 1996. In 2009, the first iteration of the Respect for Marriage Act was written to repeal DOMA with or without the Supreme Court’s involvement. The bill has been updated several times. If passed, the Respect for Marriage Act would finally repeal all of DOMA, requiring the federal government to recognize same-sex marriages in its benefits and responsibilities for married couples, as was done through the Courts with United States v. Windsor. The bill would also require states to recognize legal same-sex marriages (and interracial marriages) performed outside of the state. In addition, it requires states to abide by court orders or other records issued by other states regarding marriage. This language would protect, for example, adoption and other such rights.
The Respect for Marriage Act might have been drafted out of a desire to fully repeal the Defense of Marriage Act, but it has become a dire emergency over the past year. The Supreme Court has a 6-3 Republican majority and several conservative Justices have already hinted, mostly in concurring or dissenting opinions, that they want to overturn Obergefell v. Hodges and go back to a time when LGBTQ+ people’s rights were left to each state.
This all came to a head this year, when the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned precedent that had recognized a right to abortion in the Constitution. We have learned from the fall of Roe v. Wade that our rights need to be protected through laws, not Supreme Court precedent.
Some activists, including a lot of progressives, have mischaracterized the scope of this bill and the reasons it doesn’t go further. For example, this act doesn’t require each state to issue marriage licenses to same-sex or interracial couples. This means that the Act does not fully enact the rights afforded through Obergefell v. Hodges. But that’s because our system doesn’t work that way, or more precisely, some Supreme Court precedents have made sure it won’t work that way. The federal government isn’t allowed to require the states to enact federal policy – the federal government is supposed to do that themselves. The Supreme Court calls this “commandeering” and there’s a whole litany of cases in which the Court has disapproved of that. But requiring a state to recognize another state’s marriage is more accepted legally.
Another critical thing to know about the Respect for Marriage Act is that there are religious aspects to this version of the bill that weren’t included in past versions. These were necessary to get the 60 votes required to pass the Senate and move forward to the House. But most of the religious pieces of the bill were either already required or the Court would have put into place in any event. The biggest change in the law, in terms of religious protections, is a provision that allows religious nonprofits to refuse services related to a marriage.
Some are saying the Respect for Marriage Act isn’t good enough and Congress should do more – but there is not much more they can do at the moment (actually, the initial bill in 2009 was much more narrow than this version).
Whatever Congress can do right now to improve and protect LGBTQ+ rights, including passage of the Equality Act, needs to be done NOW – before Republicans take over the House in January.
We can’t trust this 6-3 Republican controlled Supreme Court – that seems intent on eroding rights – but we should be able to rely on our elected Democratic controlled Congress. The way we protect our communities and rights is to push forward with these protections through laws.
By: Scottie Thomaston, Courage California Institute