Yesterday afternoon the U.S. Senate passed the Respect for Marriage Act, sending it to the House for revisions before President Biden can sign it into law.
The bill requires states to recognize same-sex marriages performed in other states. It requires that same-sex couples are entitled to federal benefits, like Medicare and social security. It also affords these same protections for interracial marriages.
The goal of the Respect for Marriage act is not to secure new rights for same-sex couples. Instead, it’s to enshrine rights that currently exist.
Democratic senators, led by Wisconsin’s own Tammy Baldwin, hope that it will protect same-sex marriages should the Supreme Court overrule their previous findings in favor of marriage equality. Steve Sparkey, the Executive Director of the LGBTQ+ nonprofit Outreach Madison explains: “It doesn’t go as far as ensuring that there will be legal gay marriage in all states, but it does make sure that for people who currently have gay marriages, those marriages will not be rescinded,” Sparkey said.
Legal gay marriage became the law of the land just seven years ago, when the US Supreme Court held in Obergefell v. Hodges that the constitution enshrines a right for same-sex marriages to be recognized by all states.
But those rights are in jeopardy this year, after the Supreme Court case that removed federal abortion protections also put other rights to privacy on notice.
In writing a concurrence to that case, Dobbs vs. Jackson Women’s Health, Justice Clarence Thomas suggested that the Court “should reconsider” Obergefell and several other precedent-setting cases. If they were to do so, it could affect the over 500,000 Americans who live in same-sex couple households.
Wisconsin’s two state senators, Democrat Tammy Baldwin and Republican Ron Johnson, were on opposite sides of the vote. Baldwin – who was the first openly gay Senator when she was elected in 2013 – helped lead the team that drafted and proposed the bill. Johnson initially said he would support a bill protecting same-sex marriage, but flipped after winning his re-election campaign, citing a fear that the bill would infringe on religious liberties.
In a livestream hosted by Isthmus newspaper last night, Senator Baldwin said Justice Thomas’s concurrence was what inspired her to act:
“One Justice, Clarence Thomas, wrote in a concurring opinion that we should re-litigate the contraception access cases, the Lawrence case, [and] the Obergefell case. He actually sort of issued a figurative invitation to litigators, to present cases to allow the Supreme Court to consider and overturn [those cases]. There were literally millions of Americans who were scared and frightened that their marriages might not be recognized some time in the future, and that for those that have yet to but maybe dream of marriage that it might be foreclosed to them. That’s what made the Respect for Marriage Act necessary,” Baldwin said.
If Obergefell is overruled, Wisconsin will be one of the states affected. That’s because Wisconsin’s Constitution states that only marriages between one man and one woman will be recognized by the state. Although Wisconsin courts have held that this same-sex marriage ban is unconstitutional under Obergefell, that goes out the window if Obergefell is overturned. In that event, the Respect for Marriage Act will kick in to protect same-sex couples married in other states, ensuring that their marriages are legally valid in Wisconsin.
Starkey said that the process of passing bills like this, which codify already existing rights, is like “rebuilding:”
“Unfortunately during the Trump administration a lot of laws that had been passed and parts of laws were struck down or were altered by the administration. So we’re kind of rebuilding at this point. I think we’ve come a long way, but we’re still second-class citizens in a lot of ways,” Sparkey said.
During the Senate session, Republican negotiators introduced an amendment to the Act guaranteeing that religious organizations will not be required to perform same-sex marriages. The amended bill passed the Senate 61-36, with Wisconsin’s other senator, Republican Ron Johnson, voting against the bill.
This news comes as conservative state legislatures across the country are passing laws that explicitly discriminate against LGBTQ+ people by restricting their access to public institutions and healthcare. A bill called the Equality Act, which would forbid discrimination based on sexual orientation or gender identity, passed the House last year but never made it to the Senate.
The Respect for Marriage Act will return to the House for review before President Biden can sign the act into law. Senator Baldwin said that she expects the bill to become law in the next couple weeks.
Image Attribution: Les Chatfield @ Flickr (licensed under Creative Commons BY 2.0)