On July 19, the House of Representatives passed the Respect for Marriage Act in a 267-to-157 vote, which included 47 Republican votes in support. Under this Act, marriage performed in one state must be recognized in all states, irrespective of sex, race, ethnicity, or national origin. If passed by the Senate, the bill will codify marriage equality at the federal level, ensuring federal rights and benefits, and repeal the Defense of Marriage Act. In light of the reversal of Roe v. Wade, the House vote has been viewed as a much needed step to codify marriage equality when trust in the conservative-majority Supreme Court to uphold previous landmark judgment in the Obergefell v. Hodges case is waning.
LGBTQ+ organizations, advocates, and elected officials are urging the Senate to pass the Respect for Marriage Act and bring it to President Joe Biden’s desk for signing. This is especially urgent as the Supreme Court aligns itself with ultra-conservative ideologies and white Christian nationalism. Recently, some Republican lawmakers have shared their thoughts about the potential to overturn Obergefell. Within weeks of the reversal of Roe v. Wade, Sen. Ted Cruz said the Supreme Court was “clearly wrong” and “overreaching” in its decision to legalize same-sex marriage nationwide in 2015.
Evan Wolfson, the founder of Freedom to Marry, is hopeful the Senate will do the right thing.
“A super-majority of the American people (71%) support the freedom to marry—including a majority of those still willing to identify as Republicans—and the Senate should follow the House and send the Respect for Marriage Act to President Biden for signature into law,” Wolfson said.
Despite there being widespread and bipartisan support for the Respect for Marriage Act and for marriage equality in general, there is a need to recognize that the current polictical climate has become increasing hostile toward LGBTQ+ people, especially transgender folks, with as many as 238 bills being proposed within the first three months of 2022 that would limit the rights of LGBTQ+ Americans. Ryan Thoreson, a law professor at the University of Cincinnati focusing on human rights, constitutional law, and sexuality, hopes “that the Senate can act quickly on this and that this is kind of a common sense protection that they’re willing to adopt,” but recognizes the “concern that some of the really hostile rhetoric is getting in the way of real common sense solutions here.”
Protecting marriage equality at the state level
Moving forward, LGBTQ+ organizations are taking proactive steps to ensure marriage equality is protected and are pushing for change at the state level, too.
While 15 states and Washington, D.C., have laws to explicitly affirm the right to same-sex marriage, 25 states have banned same-sex marriage under both their constitution and state law, all of which were invalidated in 2015 by the Obergefell ruling. Lawmakers at the state level have the ability to protect same-sex marriage, and some state legislatures are moving to repeal statutes that prevented marriages from taking place in the state. Earlier this year in New Jersey, for instance, the state legislature ensured that same-sex partners will be able to marry even if the Supreme Court were to revisit Obergefell.
In 2020, Nevada became the first state to enshrine same-sex marriage into its constitution. The state included a question on the ballot asking voters whether they were in support of an amendment recognizing marriage “as between couples regardless of gender.” With 62% of the voters in favor, they were able to make this amendment.
Further, marriage equality in California is protected by two separate decisions that recognize not only the fundamental right to marry, but also the right of people to enjoy equal protection under the law. The recent Dobbs decision does not undermine either the right to marry or the right to equal protection, said Tony Hoang, the executive director of Equality California.
“We need to remove discriminatory laws from the books so that marriage is protected—that includes repealing the so-called Defense of Marriage Act,” he said.
People have the power
Activists say that what people can do moving forward is go out and vote for candidates and policies that vow to protect the future of LGBTQ+ rights
“The November election is right around the corner, and in California, we have anti-equality representatives, like Congresswoman Young Kim and Congresswoman Michelle Steel who voted against what their constituents believe is right and just on this issue and what an overwhelming majority of Americans believe,” Hoang said. “Every person who supports equal rights for all people needs to vote this November.”
Activists say there needs to be pushback against the sentiment that calls Obergefell into question or suggests that this case was improperly decided and should be revisited by the Supreme Court.
“There are voices across the political spectrum that can and should speak out against this. And I think that’s an important asset to leverage in kind of nipping this in the bud and not letting it grow into the next kind of moral panic,” Thoreson said.
LGBTQ+ organizations are urging folks to stay informed, contact their elected officials, and go out and vote this November to ensure that we can replace members of Congress who do not support LGBTQ+ equality with pro-equality representatives.
Further, LGBTQ+ couples are being encouraged to take additional steps to insulate their marriages or their partnerships from standard interference. This can look like preparing medical proxies, power of attorney forms, setting up living trusts, ensuring that both partners have equal rights over their children, and more. LGBTQ+ folks and allies should also educate family members and other allies on what kind of a threat is starting to bubble up around the issue of marriage equality.
“I think a lot of people who are generally supportive of marriage equality don’t realize that there are these rumblings about marriage equality being under threat, or understand the processes by which it will happen and kind of shrug it off,” Thoreson said. He adds that telling friends and family about harmful rhetoric from lawmakers and the regressive policies that some state parties are pushing is important, and so is encouraging people to push back against it.
Despite the looming concern, activists believe this is not the time to panic and hypothesize about the worst possible outcome, but rather to encourage people to vote, stay engaged, and actively participate in protecting LGBTQ+ rights.
“There is certainly a threat, but we don’t need to waste time and energy speculating or worrying about future additional damage when what the courts and Republican politicians are already doing to roll back rights is bad enough,” Wolfson said. “If we elect good representatives and eject those who attack our freedoms, we will thereby defend the freedom to marry, too.”