Marriage equality advocates — and Americans who want to get married — won a huge battle Tuesday when the Senate passed the Respect for Marriage Act. (It must be concurred by the House before it becomes law.) But they haven’t won the war.
The Respect for Marriage Act, which we’ll abbreviate as RMA, does two big things: It repeals the 1996 Defense of Marriage Act, which defined marriage as a legal union between one man and one woman and allowed states to refuse to recognize same-sex marriages performed in other states; and the RMA mandates all states recognize a marriage between two people regardless of race, ethnicity or sex so long as the marriage is considered legal in the state in which the marriage was performed. For example: If a same-sex couple want to get married but live in a state where it is illegal, they can go to a state where it is legal, get married and return to their home state. Their home state would then have to recognize the legality of their marriage and provide the appropriate protections and benefits afforded to married couples.
For context, the Supreme Court’s 2015 decision in Obergefull v. Hodges still protects same-sex marriage nationwide. However, in his concurrence with the Dobbs v. Jackson Women’s Health, Justice Clarence Thomas recommended the court revisit that case, which was decided on the 14th Amendment, much like Roe v. Wade. (Though Thomas notably did not mention a similarly decided case, Loving v. Virginia, which permitted interracial marriage. Thomas is Black and his wife is white.) Activists and lawmakers leapt into action to protect same-sex and interracial marriage at the federal level in case the high court decided to overturn either precedent.
Even with the RMA in place, if the Supreme Court overturns Obergefell (or Loving), 35 states have trigger laws that would go into effect. This law, which is expected to pass before the end of the year, provides a modicum of protection.
As we said, marriage equality won this battle, but it hasn’t won the war. The RMA does not force states to allow same-sex or interracial marriages, only to acknowledge legal unions performed in other states. So if Obergefell is overturned, states can make it illegal for same-sex couples to be married in that state.
It also has a carve out to protect religious organizations that deny goods or services for same-sex or interracial marriages, and it also prevents individuals from bringing legal action against those organizations. In other words, it legalizes discrimination against LGBTQ+ people (and possibly non-white people) based on religious beliefs.
The RMA is a step in the right direction and it addresses the most pressing need — protecting marriage equality in the face of a far-right Supreme Court — so we will call it a win. We might even call it a victory since 12 Republican senators joined all 50 Democrats to pass the bill — including Sen. Shelley Moore Capito.
The highest court in the land might be trying to move the nation backwards, but we’re glad Congress can see that Americans’ attitudes toward same-sex marriage are evolving and becoming more tolerating (if not accepting). So marriage equality supporters can celebrate today — and get back to fighting tomorrow.
