The Respect for Marriage Act
December 28, 2022
On December 13, 2022, President Biden signed the Respect for Marriage Act (“the Act”) into law, providing historic protections to interracial and LGBTQIA+ couples. This is certainly cause for celebration, but it also fails to fully enshrine those couples’ right to marry. (It merits noting that protections of interracial marriages are desperately needed. That said, at present, much of the discourse around the Act relates to LGBTQIA+ marriages in the wake of conservatives’ more overtly anti-LGBTQIA+ marriage agenda, and this piece reflects that discourse.)
The Act in part targets the loophole found in a provision in the Defense of Marriage Act which “allowed individual states to decide if they would recognize same-sex marriages performed in other states.” Under the Act, all states are required to recognize marriages of interracial and LGBTQIA+ couples as legal. However, the Act does not codify the Supreme Court’s Obergefell v. Hodges decision that granted LGBTQ+ couples the right to marry; should Obergefell be overruled, states aren’t required under the Act to preserve that right to marry. They are simply required to recognize legal marriages from other states. And as Justice Thomas recently noted in his concurrence in Dobbs v. Jackson Women’s Health Organization,
“we should reconsider all of this Court’s substantive due process precedents, including […] Obergefell.”
In light of the Dobbs opinion and the deeply conservative Supreme Court, such “reconsideration” would very likely result in overruling Obergefell. Should that likely reality come into fruition, we will soon see the devastating limitations of the Act. In its current iteration, its protections only require states to recognize legal marriages from other states. It does not require them to permit same sex or interracial marriages within their own borders. In a country without Obergefell, for example, a lesbian couple living in a conservative state might find they can’t marry there; they would need to travel to another state to marry, and rely on the protection of the Act to ensure that “their home state would be obligated to afford them the same rights as any other married couple.”
We at the Woodhull Freedom Foundation are, of course, glad to see pro-equality legislation become law. We also share the concerns of LGBTQIA+ folks and allies and warn against the danger of celebrating the Act without also critically interrogating where it falls short. The U.S. government must codify protections for LGBTQIA+ folks beyond those included in the Act, including a federal mandate for states to allow legal same-sex marriage.