There’s a lot of news today about how 12 Senate Republicans joined the 50 Senate Democrats to vote for the Respect for Marriage Act, a bill being lauded as codifying same-sex and interracial marriage as a right at the Federal level. This is an important, and necessary, win for progress in the fight for equality But, I’m not jumping for joy and here’s why…
Without a doubt, anytime there is even a mere whisper of legislation that will give the rights enjoyed by so many Americans to LGBTQ+ Americans, it comes with a sister, a yell, mentioning religious liberty. Religious ideology has been threatened in the past with lawsuits filed by those who have been discriminated against because of their sexual orientation. Those lawsuits were necessary because the LGBTQ+ community could not convince legislators across the country that we are equal citizens and therefore should be afforded all of the same rights and privileges as everyone else. We couldn’t get married, were turned away from businesses because they didn’t “believe” in a “lifestyle,” wrongly imprisoned by state sanctioned police forces, and that’s just the layer of icing on the cake.
When a government does not recognize a right, or in some cases strictly outlaws your existence (which has happened in the past and, for some of the LGBTQ+ community is still happening right now), action must be taken. Lobbying, protesting, marching in the streets are all solutions. But they don’t get the results of a lawsuit. A lawsuit, successfully argued, actually changes the law in cases like these. That’s why the lawsuit is the tool of choice.
The Respect for Marriage Act does not codify same-sex and interracial marriage into Federal law–it codifies the recognition of those marriages. Same-sex marriage was legalized across the country by the Supreme Court’s decision in Obergefell v. Hodges in 2015. But, if for some reason that decision were to be overturned, same-sex marriage would, as we saw with the recent Dobbs decision on abortion, instantly become illegal in a number of states.
Actually, same-sex marriage would be illegal in 31 states if that happened. In fact, there’s another list that includes 30 states where same-sex marriage is banned explicitly in the state’s constitution. God forbid religious liberty be threatened–it seems like religious objections could very easily have the upperhand.
So what does the Respect for Marriage Act (ROMA) actually do? ROMA overturns the Defense of Marriage Act (DOMA) which federally defines marriage as a union between one man and one woman, and it legally allows states to refuse to recognize same-sex marriages from other states. So, basically, DOMA allowed the states I talked about in the above paragraph to do what they did and ROMA would make that kind of thing illegal….moving forward.
ROMA will require the Federal government to recognize the marriage of two individuals if the marriage is valid in the state where it was performed. It also will require states to recognize these marriages. However, because the Constitution grants states, and not Congress, the power to decide who may marry in that state, ROMA will not require states to perform same-sex marriages if, for example, Obergefell were overturned. Should this once again become a state issue, under the guise of “state’s rights” (the same argument used to overturn Roe v Wade), there will be states that refuse to perform same-sex marriages.
Back to religious liberty. ROMA reaffirms protections found in the Religious Freedom Restoration Act; confirms that non-profit religious organizations won’t be required to provide services for marriages they disagree with on a religious basis; guarantees the bill may not be used to deny or alter a benefit given to a religious based organization (like tax-exempt status) if the benefit in question is in no way related to marriage; and finally, it makes clear that the Federal government doesn’t recognize polyamorous marriages.
Seems that the bill is loaded more with language to protect religious liberty than anything else.
BUT, as I said, this is a positive step. It is what happens when discussions are had and compromise is reached. That’s what the government should be doing more often.
In a perfect world, this bill wouldn’t even be necessary because everyone would have the same rights already. Then we wouldn’t be worried about who is discriminating against who. Utopia, I know–but really this shouldn’t even be a question.
Today’s vote was notable because it was 62 votes in support, which is the majority needed to close debate and avoid the filibuster. The Senate will vote again to pass the bill, then it will go to the House for a vote and if it passes it will go to the President for a signature.