Look, as an institutionalist who recognizes the power of incrementalism in the slow but steady march to equality, I’m used to seeing the forest for the trees. In that regard, the legislation’s repeal of the remaining section of the 1996 Defense of Marriage Act — which defined marriage as one man, one woman — is an advancement. But the more I focus on the trees that make up this act, the more my joy diminishes.
Remember, the Respect for Marriage Act is meant to safeguard against the view expressed by Justice Clarence Thomas that the Supreme Court “should reconsider” Obergefell, its 2015 ruling that guaranteed a constitutional right to same-sex marriage. Writing in the Dobbs decision that overturned Roe v. Wade’s constitutional right to an abortion, Thomas went on to say that the precedent’s foundation of due process “is ‘demonstrably erroneous’ ” and that “we have a duty to ‘correct the error.’ ”
Let’s say Thomas gets his wish and Obergefell is overturned. According to Pew, same-sex marriage bans in 35 states would go into effect — RMA or no RMA.
Now, if that were to happen, the Respect for Marriage Act means the federal government would recognize same-sex marriages performed in states where the practice is legal. So my D.C. marriage would be fine. And if we moved to my husband’s home state of North Dakota, which bans our union in its constitution and by law, the federal government would still recognize our marriage because it was legally performed in D.C.
What the act does not do is require states to issue marriage licenses in contravention of state law; this is (for now) the province of Obergefell. So, same-sex couples living in states where they couldn’t legally marry post-Obergefell would have to go to another state where it is legal if they wanted to marry. What in the second-class-citizenship?
And don’t get me started on the financial burden this would place on couples. The upside guaranteed by this new legislation is that once they return home, their home state would have to recognize their marriage just as it does that of heterosexual married couples. Gee, thanks.
And there are more trees in this forest that offend my sense of fairness and justice. Look at the religious-freedom exemptions enumerated in the RMA; that someone could use their personal beliefs to deny services to me and other LGBTQ Americans and be shielded from legal action is an insult to our dignity. The only sliver of a saving grace is that the act doesn’t make new law, but simply reiterates what’s already on the books, such as the Religious Freedom Restoration Act.
If the Senate really wanted to take a big step to protect LGBTQ Americans and our families, it would finally pass the Equality Act.
That’s the bill that would provide federal protection from discrimination based on sex, gender identity and sexual orientation. One thumbnail understanding of this legislation is it would protect a same-sex couple married on Sunday from being evicted, fired or subjected to any other indignity on Monday. At a minimum, it would give that couple legal recourse to try to right such a wrong.
The Equality Act passed the House last year, and it’s been sitting in the Senate ever since — a victim of the 60-vote threshold required by the filibuster. And if there is no action on it in this lame-duck session, the bill dies. Of course, there is a less-than-zero-percent chance the coming Republican majority in the House of Representatives will reintroduce such a bill. The party has made it clear it is more interested in targeting the Biden administration than in protecting LGBTQ rights.
In a perfect world, nothing will happen to Obergefell. And as long as that remains the case, the Respect for Marriage Act would be little more than the legislative equivalent of insurance. It’s not the most comprehensive policy. But it’s better to have half a safeguard than nothing at all if disaster strikes.