The U.S. Senate passed landmark legislation this week enshrining protections for same sex and interracial marriages in federal law in a bipartisan vote that marked a dramatic turnaround on a once highly divisive issue.
The Senate action marks a major hurdle for the legislation, which President Biden has said he will sign into law pending a vote in the House of Representatives.
Leonore F. Carpenter, a Rutgers Law School professor who has served as an LGBTQA rights attorney, explains what the Respect for Marriage Act accomplishes, and what is does not.
What exactly does the Respect for Marriage Act do to protect same-sex marriage?
The Act does a few important things.
First, it repeals the federal Defense of Marriage Act. That law was passed in 1996, and it prohibited the federal government from recognizing same-sex marriages that had been validly entered into under a state’s law. It also gave the green light to states to refuse to recognize same-sex marriages from other states.
Next, it prohibits states from refusing to recognize same-sex marriages that are validly entered into in a different state. It’s also important to note that it does the same for interracial marriage.
This law takes the federal government out of the business of deciding what marriages are valid by making a general rule that if a marriage was valid in the state it was entered into, the federal government will recognize it.
It also reiterates that faith-based organizations don’t have to participate in the celebration or solemnization of marriages if they don’t want to.
Are there any shortcomings in the legislation?
This legislation doesn’t require states to issue marriage licenses for same-sex couples. Under the Supreme Court’s 2015 decision in Obergefell v. Hodges, states currently have to do that because the Supreme Court decided that not issuing those licenses violates the U.S. Constitution. But if that decision is overruled by a right-wing court, it’s harder to force states to issue marriage licenses to same-sex couples.
This law gets partially around the problem by requiring that those states recognize marriages that were entered into someplace else – but that creates barriers for people who don’t have money to travel in order to get married somewhere else. In a small state like New Jersey that’s adjacent to a lot of other states, it can be hard to imagine why this would be a big deal. But imagine if you’re low-income and live in the middle of a large, conservative state like Texas. This hole in the legislation turns into a real economic justice problem, where poor people can’t access the rights they’re allegedly entitled to because they simply can’t afford the costs of access.
Less than 30 years ago Congress passed legislation barring federal recognition of same-sex marriage and the Supreme Court ruled just seven years ago there was a constitutional right to same-sex marriage. How did opinion change so fast with Congress now enshrining federal protection into law?
It’s pretty head-spinning even for those of us who work on these issues professionally. This happened as the result of decades of careful, incremental work by LGBTQ rights advocates. As far back as the early 1990s (there were even a couple of cases brought earlier than that), advocates brought lawsuits in state courts, trying to use state constitutional theories to incrementally expand access to relationship recognition. And at the same time, those advocates really worked hard to help the public understand that many LGBTQ people wanted the same stable, legally recognized and (hopefully) lifelong relationships that so many straight people have always sought and benefitted from. This was a real surprise to large segments of the population, who had been indoctrinated to believe that LGBTQ people are inherently mentally ill, incapable of maintaining stable relationships and disinterested in raising families.
Once Americans realized that huge percentages of the LGBTQ population wanted and were capable of maintaining stable families, and once they were actually able to see those couples get married as a result of that state-based litigation, minds changed fairly quickly.
Why do you think is it possible to codify federal protection for same-sex marriage, which was only recognized by the Supreme Court seven years ago, but not the right to abortion which was the law for 50 years until the court’s Dobbs decision in June? How long do you think it will take for the federal government to take similar action on reproductive rights?
So much is in flux politically right now that I think anyone who tries to make that kind of prediction stands a high likelihood of being really wrong. But I will say that I think that Congress genuinely is in disarray right now, because so many experts never expected the kind of scorched-earth ruling that we’ve been handed with Dobbs. So, I think that for now, many members of Congress are nervous about taking any kind of stand on the issue without first seeing how states respond. And honestly, states are responding fairly robustly, so it may be a smart move politically to just wait and see for a while, even if it’s not a particularly brave stance.
Passage of the bill doesn’t signal universal acceptance of LGBTQ rights. There are still acts of violence and hate; fights over trans rights, trans athletes, allowing trans youth access to gender-affirming health care and access to books in schools with LGBTQ themes and characters. Do you think federal protection of same-sex marriage will lead to more acceptance of other issues affecting the LGBTQ community?
I think that it’s because same-sex marriage has become generally accepted that many of the other issues you raise have become such hot-button topics. Trans youth didn’t just appear last year, nor did treatment for those youth. Books with LGBTQ themes didn’t just pop up in school libraries last week. These issues have been specifically seized upon by opportunistic right-wing politicians who gain power by stoking baseless fears of misunderstood marginalized communities, and then selling themselves as the only protection people have from the targeted group. For decades, right-wing politicians successfully used same-sex marriage for that purpose, gaining power by promising to “protect the institution of marriage” from outside assailants. Now that this kind of demagoguery lacks traction, they’ve moved on to other targets. It’s up to LGBTQ people and their allies to continue the work of educating the public, standing up for marginalized communities in court and letting legislators know that they should be protecting those communities through legislation.