On Tuesday, November 29, the Senate voted to protect same-sex marriage, one of the rights threatened in the face of Roe v. Wade may be endangered, in addition to interracial marriage, by passing the Respect for Marriage Act.
Fears of a domino effect have gripped the country since the constitutional abortion right was abolished. With Roe’s fall, many people have feared that other cases decided based on Roe’s precedent are also at risk of being reversed.
In fact, Supreme Court Justice Clarence Thomas Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges identified (who ruled in favor of access to contraception, same-sex sexual activity, and same-sex marriage respectively) in his consensus view as cases that could potentially be revisited.
To counteract this, a bipartisan group of lawmakers introduced Marriage Respect Law to Congress to uphold legalization of same-sex marriage. The law passed the House of Representatives on July 19. And on November 29, the Senate passed it. While that doesn’t mean it’s ready to become law, the bill will now head back to the House of Representatives, where it’s expected to pass quickly and then be signed into law by President Joe Biden.
But what exactly does the Respect For Marriage Act protect? The bill was drafted to protect the rights of LGBTQ+ couples. For example, if the Supreme Court Obergefell v. Hodges reverses the ruling that originally legalized same-sex marriage in 2015, a state could ban same-sex marriage. But if the Respect For Marriage Act is passed, individual states would have to recognize another state’s legal marriage. POPSUGAR spoke along Ashley M. Silberfelda partner in marriage and family law practice at Blank Rome LLP, on what this could mean for LGBTQ+ couples.
What is the Respect of Marriage Act?
The Respect For Marriage Act provides protections for same-sex and interracial marriages, the official said Congress website. Specifically, the bill “repeals and replaces provisions that define, for federal law purposes, marriage as between a man and a woman and spouse as a person of the opposite sex with provisions recognizing any valid marriage under state law. ethnicity or national origin.
The Respect For Marriage Act was enacted in response to the court ruling in Dobbs v. Jackson Women’s Health (which brought down Roe) because the reasoning SCOTUS used to rule against abortion rights in that case can also be used to reverse it could the precedents of Griswold, Lawrence, Obergefell and Loving v. Virginia (a 1967 case in which state laws barring interracial marriage were unconstitutional). Although the Supreme Court ruled in 2015 that state laws prohibiting same-sex marriage were unconstitutional in Obergefell v. Hodges, the court’s decision in Dobbs means SCOTUS could use that rule to overthrow Obergefell in the future. The goal of this law is to protect the right to marriage for same-sex and mixed-race couples if Obergefell or Loving is next to be repealed.
What would protection mean for LGBTQ+ couples?
The Respect For Marriage Act, if passed into federal law, would mean that marriages by LGBTQ+ couples are legal and constitutionally protected no matter what state they live in Case Obergefell v. Hodges. In that ruling, the Supreme Court overturned all state bans on same-sex marriage, made it legal in all 50 states, and required states to recognize out-of-state same-sex marriages.
However, Many states have anti-LGTBQ+ marriage laws lurking beneath the surface of the recent federal court ruling. If Obergefell is repealed, these laws will allow state governments to refuse to recognize same-sex couple marriages and bar prospective couples from marriage — that is, unless the Respect for Marriage Act is passed.
“The Respect For Marriage Act is groundbreaking in that it positively breaks away from the more ‘traditional’ construct of marriage,” says Silberfeld. “It also creates rights for the Justice Department to bring charges for violations of the law, as well as private rights to sue for such violations. The inclusion of such rights, I think, shows the intentions of the legislature – that they really mean business about protecting marriage rights for all individuals, period.”
How does a bill’s codification protect same-sex marriage?
Passing the Respect For Marriage Act would codify same-sex marriage. Codification of an invoice means it becomes a federal law that must be implemented and obeyed, and that individuals can be prosecuted if they break it.
“While this law is definitely a step in the right direction to protect all marriages, there’s still a chance it could be overturned by the Supreme Court if it becomes federal law,” Silberfeld said. “Our system is a system of checks and balances, so while the legislature can enact a law, the Supreme Court has ultimate authority to review whether that law stands up to constitutional scrutiny.” In theory, SCOTUS could overturn any codified law that the Legislature passes it if it deems it “unconstitutional.”
How can LGBTQ+ couples protect their marital status?
“I want to encourage these couples and all of us to stand up in support of these kinds of laws in the days, months and years to come,” Silberfeld said. This means, for example, voting and letting your representatives know which issues are important to you as a voter.
And remember, if the bill doesn’t pass now, same-sex marriage rights will continue to apply as long as Obergefell v. Hodges won’t be repealed, and that doesn’t mean the issue can’t be addressed in another bill later.
