On Thursday, December 8, the House approved the Respect For Marriage Act, in an effort to protect same-sex marriage, one of the rights potentially at risk in light of the overturn of Roe v. Wade. It now heads to President Joe Biden to be signed into law.
Since the constitutional right to abortion was stripped away, fear of a ripple effect has loomed over the country. With Roe overturned, many people have worried that other cases decided based on Roe’s precedent would be at risk of reversal, too. In fact, in his concurring opinion, Supreme Court Justice Clarence Thomas named Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges (which ruled in favor of birth-control access, same-sex sexual activity, and same-sex marriage, respectively) as cases that could potentially be revisited.
In an effort to maintain the legalization of same-sex marriage, a bipartisan group of lawmakers introduced the Respect For Marriage Act into Congress. On July 19, the bill passed in the House of Representatives, then on Nov. 29, it was passed in the Senate. From there, it was sent back to the House for final approval, which it received on Dec. 8, with lawmakers from both parties voted in its favor. Next, the bill will be placed on President Biden’s desk, who is expected to sign it into law. (After it passed the Senate in November, the president released a statement confirming his intention: “After the House passes this legislation and sends it to my desk… I will promptly and proudly sign it into law.”)
When the landmark legislation was introduced months ago, it was widely considered unlikely to become law. But the act received bipartisan support, helping secure its passage. “Today, we will vote for equality and against discrimination by finally overturning the homophobic Defense of Marriage Act and guaranteeing crucial protections for same-sex and interracial marriages,” Rep. David Cicilline, Democrat of Rhode Island, said moments before it passed the House, per The New York Times.
What exactly does the Respect For Marriage Act protect? The bill was crafted to protect the rights of LGBTQ+ couples. For example, if the Supreme Court overturns Obergefell v. Hodges, the decision that originally legalized same-sex marriage in 2015, a state would be able to ban same-sex marriage. But if the Respect For Marriage Act passes, it would require individual states to acknowledge another state’s legal marriage. POPSUGAR spoke with Ashley M. Silberfeld, a partner in the matrimonial and family law practice at Blank Rome LLP, about what this could mean for LGBTQ+ couples.
What Is the Respect For Marriage Act?
The Respect For Marriage Act provides protection for same-sex and interracial marriages, according to the official Congress website. Specifically, the bill “repeals and replaces provisions that define, for purposes of federal law, marriage as between a man and a woman and spouse as a person of the opposite sex with provisions that recognize any marriage that is valid under state law.” Basically, the act expands the definition of marriage so it’s no longer tied to sex or gender and also protects the right to marry regardless of race, ethnicity, or national origin.
The Respect For Marriage Act was put forth as a reaction to the Court’s ruling on Dobbs v. Jackson Women’s Health (which overturned Roe) because the justification SCOTUS used to rule against the right to abortion, in this case, could also be used to reverse the precedents set by Griswold, Lawrence, Obergefell, and Loving v. Virginia (a 1967 case that ruled state laws barring interracial marriages were unconstitutional). So even though the Supreme Court ruled in 2015 that state laws barring same-sex marriages were unconstitutional in Obergefell v. Hodges, the court’s decision in the Dobbs case means SCOTUS could use that rule to overturn Obergefell in the future. The goal of this act is to protect the right to marriage for same-sex and interracial couples in the event that Obergefell or Loving is overturned next.
What Would the Protection Mean For LGBTQ+ Couples?
The Respect For Marriage Act, if signed into federal law, would mean that marriages of LGBTQ+ couples are legal and constitutionally protected regardless of which state they live in. Right now, same-sex marriage is legal nationwide because of the Obergefell v. Hodges case. In that ruling, the Supreme Court struck down all state bans on same-sex marriage, making it legal in all 50 states and requiring states to honor out-of-state same-sex marriage licenses.
However, many states have anti-LGTBQ+ marriage laws that have been lurking under the surface of the current federal court ruling. If Obergefell is overturned, state governments with those laws can refuse to recognize the marriages of same-sex couples and exclude future couples from marriage – that is, unless the Respect For Marriage Act is passed.
“The Respect For Marriage Act is groundbreaking in that it’s affirmatively breaking away from the more ‘traditional’ construct of marriage,” Silberfeld says. “It also creates rights for the Department of Justice to bring charges against violations of the law, as well as private rights to sue for such violations. Having such rights included, in my opinion, shows the legislators’ intentions – that they are really serious about protecting the rights of marriage for all individuals, period.”
How Does Codifying a Bill Protect Same-Sex Marriage?
The passage of the Respect For Marriage Act would codify same-sex marriage. Codifying a bill means it becomes a federal law that must be implemented and followed and for which people can be prosecuted if they violate it.
“While this bill is definitely a step in the right direction to protect all marriages, there’s still a possibility that if it becomes a federal law, it could be overturned by the Supreme Court,” Silberfeld says. “Our system is one of checks and balances, so while the legislators can make a law, the Supreme Court has the ultimate power to review whether that law withstands constitutional muster.” Theoretically, SCOTUS could overturn any codified law that legislators pass if they deem it “unconstitutional.”
How Can LGBTQ+ Couples Protect Their Marital Status?
“I would encourage these couples and all of us to get involved in supporting this kind of legislation in the days, months, and years ahead,” Silberfeld says. That means, for example, voting and letting your representatives know which issues are important to you as a constituent.
And remember: if the bill does not pass now, same-sex marriage rights still stand as long as Obergefell v. Hodges isn’t repealed, and it does not mean the issue can’t be addressed in another bill later.