I wrote the following piece last month about the Respect for Marriage Act. Not being a lawyer, I wanted to talk to some legal scholars about my thoughts and reservations about the proposed legislation before publishing this piece. After speaking with several people, I am not convinced that my fears and reservations are unfounded, and I still feel it is necessary to set the record straight that this bill is not what many politicians and the media are portraying it to be.
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Recently, the House of Representatives voted to pass a bill referred to as the Respect for Marriage Act. The bill has been touted as a codification of the famous Obergefell decision of the US Supreme Court. However, that is not the reality as spelled out in the very short bill that is now heading to the Senate.
The Obergefell decision granted marriage equality to all same-sex couples no matter the state in which they reside. In essence, it nullified the infamous Defense of Marriage Act passed in 1996 which defined marriage as a union between one man and one woman. “[T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife,” the original legislation reads.
Since the Obergefell decision, there was no need to repeal DOMA; however, due to the unfounded hysteria from the fall out of the overturning of Roe v. Wade, Congress has actually decided to become a useful body of governance once again and do something. This new legislation, the Respect for Marriage Act, does in fact repeal DOMA, but that is where the similarity with Obergefell ends. This new law would not legalize same-sex marriage in every state, as Obergefell essentially did.
The Respect for Marriage Act simply dictates that a state must recognize a same-sex marriage that has been lawfully performed. The legislation clearly states, “For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.”
This means that if Obergefell were to be overturned, the issue of same-sex marriage would revert back to the states, just like abortion. A state legislature would be able to decide if that state wanted to continue to perform and allow same-sex marriage. The new law would simply make all states recognize any previously established homosexual marriage. Furthermore, if a same-sex married couple were to move from one state that recognizes their marriage to a state that does not, the dissenting state must still recognize that marriage.
Hypothetically, in a reality in which Obergefell is overturned and the Respect for Marriage Act were signed into law, if two husbands from California moved to Texas, Texas would still have to acknowledge that marriage. Similarly, if two wives were married lawfully in Texas before the hypothetical overturning of Obergefell, then Texas would still be required to acknowledge that marriage.
While this new legislation can be seen as a proverbial security blanket for already married couples and a possible step in the right direction for marriage equality, I fear it actually will do more harm than good. Several Justices, namely Alito and Barrett, have said that the Obergefell decision is not in jeopardy of being overturned. As Outspoken has reported previously, Justice Amy Coney Barrett has referred to “superprecedents” in the past. This is the idea that some cases have shaped and changed the foundation of our society so much that overturning them would be an overall negative for the country. Since Obergefell granted the right of marriage to gay couples, there have been seven years of marriages performed, plus untold numbers of adoptions or births of children to same-sex couples. Voiding those legal marriages overnight and putting into question the custody status of countless children would send the U.S. into utter turmoil and chaos.
The Democrat-led Respect for Marriage Act would now dictate that those marriages previously granted be acknowledged even in states that would theoretically not allow them. This new legislation would in essence remove that “superprecedent” therefore making it easier for the Supreme Court to overturn Obergefell.
In their habit of political theater, the left has stoked fears that after Roe was overturned, other Supreme Court decisions, like Obergefell, were next on the chopping block. The leftist organizations like GLAAD and HRC repeated ad nauseaum that the evil conservatives were coming to destroy the lives and happiness of the LGBT community. In response to that, the Democrats drafted this new legislation. If in the future Obergefell is overturned, the Respect for Marriage Act would have been the catalyst, yet the left will begin their litany of I-told-ya-so’s and place all blame on the conservative Supreme Court and the Republicans who put the justices there in the first place.
Overall, the Respect for Marriage Act is a net negative for the United States. It does not federally protect the right of gay marriage as has been suggested. It removes a very good legal reasoning for the Supreme Court to keep Obergefell in place. And it returns the issue of gay marriage back to the pre-DOMA era of the 1990s. This is yet another example of the progressive left effectually regressing the country and the LGBT community.