The U.S. is on the cusp of enacting a law guaranteeing same-sex marriage, an insurance policy against the Supreme Court overturning its landmark 2015 ruling on the issue.
The Respect for Marriage Act is expected to pass a final vote in the House of Representatives next week and be swiftly signed into law by President Joe Biden. It’s a response to fears that the court, after striking down abortion rights last summer, could next aim its fire at other liberal decisions.
The country sits at a crossroads on LGBTQ rights: Polls show a growing majority of Americans support same-sex marriage even as right-wing politicians push anti-LGBTQ legislation. The act has loopholes designed to win Republican support in Congress, and does not go as far as Obergefell v. Hodges, the case that recognized same-sex marriage.
“I’m happy that this law is moving forward, but I’m disappointed that, in our nation, this is necessary,” Jim Obergefell, 56, the plaintiff in Obergefell, said in an interview. “In a perfect world, when the Supreme Court has ruled on civil rights we have relied on and enjoyed, whether for seven years or 50, those rights could not then be taken away.”
Respect for Marriage would guarantee same-sex marriages are recognized by the federal government and oblige state governments to honour same-sex marriages performed by other states.
But, unlike Obergefell, it would not oblige states to allow same-sex weddings within their own jurisdictions. It would also let churches and other religious organizations refuse to perform services for same-sex weddings. The religious exemption helped secure 12 Republican votes in the Senate this week. The Democrats needed cross-party support for the law to avoid a filibuster.
“I’m not incredibly thrilled with the end product. It could take us back to a time where the state you live in could legally consider you a second-class citizen and not issue you a marriage licence. That is not progress,” Mr. Obergefell said. “But I’d much rather have this in place than not.”
When the Supreme Court overturned Roe v. Wade in June, allowing states to ban abortion, Justice Clarence Thomas included Obergefell on a list of other major cases he thought should be reviewed.
More than 30 states still have anti-same-sex marriage laws on the books. This means that, if Obergefell were overturned, those bans would go back into effect. So would the federal Defense of Marriage Act, which denied recognition of same-sex marriages and deprived same-sex couples of spousal benefits.
That prospect worries Chanel Copeland and Tanya Arbogast. The couple, from Durham, N.C., travelled to Massachusetts to get married in 2012, in part because they wanted legal certainty on everything from taxes to pensions and inheritance as they got older.
“After Roe was overturned, I was like, ‘Okay, they’re going to come after us next.’ My daily life should not be up for public vote,” said Ms. Copeland, 52, a physician assistant.
Ms. Copeland says she and Ms. Arbogast were privileged to be able to tie the knot in a more liberal jurisdiction when that was necessary. She’s concerned about people who couldn’t afford to make such a trip if Obergefell were struck down.
“It’s a huge inequity to tell people, ‘You’re not good enough to be married in this state,’ or impose a huge cost burden on them to travel,” she said.
David Roth, a non-profit director in Idaho Falls, Idaho, said Obergefell was the reason he was able to adopt his two sons in 2017. Utah, where Mr. Roth was living at the time, previously made it difficult for gay men such as him to adopt.
“The Respect for Marriage Act reminds me of a tourniquet – it’s your tool of last resort. It can keep a catastrophic injury from taking everything,” he said.
Mr. Roth, 41, who ran unsuccessfully for Senate in last month’s midterm elections, said he has heard from conservative local officials who are interested in challenging Obergefell in light of Mr. Thomas’s comments.
Idaho legislators are also pushing a bill that would ban drag performances in the state, part of a nationwide wave of anti-LGBTQ laws and rhetoric that reached a fever pitch ahead of the midterms. Florida passed a law earlier this year censoring classroom discussions of sexual orientation and gender identity. Politicians across the country have promised similar legislation.
Yet support for marriage equality has never been higher. A Gallup poll earlier this year found that 71 per cent of respondents back same-sex marriage, a steady rise from the 27 per cent who expressed support at the time of Defense of Marriage in 1996.
Katherine Franke, a Columbia Law School expert on same-sex marriage, said the disconnect between public opinion and political proclamations reflects the way a vocal minority often drives Republican politics.
“The extreme rhetoric is, unfortunately, probably tactically useful to mobilize extreme members of their base, but it is not reflective of a national consensus,” she said.
Constitutionally, Congress probably couldn’t require individual states to issue same-sex marriage licences because that might constitute “commandeering” their jurisdiction, Prof. Franke said.
Obliging states to recognize same-sex marriages performed elsewhere, however, is possible under the principle of “full faith and credit” – the same reason a driver’s licence from one state is valid in all. This means that, even if same-sex marriage opponents successfully challenge Obergefell, they would probably fail in a challenge to Respect for Marriage, she said.
The House originally passed Respect for Marriage in July, but must take it up again to sign off on the Senate’s addition of the religious exemption.