Congress Rushes to Pass Band AID Legislation on Same Sex Marriage
Or is this bill a terrible compromise rooted in our collective desperation?
We’ll soon find out as, on Tuesday, the Senate voted to pass the “Respect for Marriage Act.” The legislation now goes back to the Democratic-controlled House, where it is expected to pass, and then placed on President Joe Biden’s desk for his signature.
At best, it is a preemptive Band-Aid should the Supreme Court try to overturn Obergefell v. Hodges.
At face value, this act seems like a step forward by codifying federal same-sex and interracial marriage rights. At best, it is a preemptive Band-Aid should the Supreme Court try to overturn Obergefell v. Hodges, which cited the Fourteenth Amendment to legalize same-sex marriage. If Obergefell falls, bans in 35 states would go back into effect. But already married same-sex couples would not lose their benefits, and same-sex couples could continue to get married in states where it remained legal, traveling to another state if necessary.
But in no way does this act federally legalize “marriage equality” across the United States. It is mostly insurance for existing marriages. As Cornell University Law School professor Michael C. Dorf explained, “Same-sex couples residing in states that do not of their own accord recognize the legality of their marriages would have to go to the trouble and expense of traveling to a state that does in order to receive full recognition in their home state.”
Even John Cornyn, the conservative Republican senator from Texas, agreed that the act “does not move the needle on same-sex marriage.”
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Tanya McCloskey and Marcia Kadish exchanged their vows at Cambridge City Hall one early summer morning outside Boston, after spending 20 years together. May 17, 2004, was a momentous day, not just for the two of them, but for the United States; that day, they became the first same-sex couple to be legally married in this country.
Back then, same-sex marriage was a deeply divisive issue in the United States. Even high-profile Democrats like former President Barack Obama were hesitant to share their support for same-sex marriage — although Obama did eventually become the first president to do so. Now, it has become a somewhat unifying issue, even within a divided government.
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This week, the Senate is set to move forward with the Respect for Marriage Act (RMA) to codify same-sex and interracial marriages through federal protections. Dozens of Republicans have voted in support of the bill, including congressional leaders like Sen. Thom Tillis who previously backed legislation that defined marriage as being between a man and a woman.
"It both reflects and accelerates the profound transformation of hearts and minds, as well as law and politics, around the treatment of gay people," says gay rights advocate Evan Wolfson who founded the organization Freedom to Marry. The legislation would repeal the Clinton-era Defense of Marriage Act and require that all states recognize interracial and same-sex marriages.
A precipitous shift in politics and public opinion alike
In 2004, when McCloskey and Kadish got married, the majority of Americans were in opposition to same-sex marriage, with about 30% in support of it. Now, polls show that over 70% of the U.S. population supports same-sex marriage, including 83% of Democrats and 55% of Republicans.
"The most difficult demographics to persuade have now come on board," says Wolfson, pointing to support from Republicans as well as religious groups, including the Mormon church. He says the GOP's evolution on same-sex marriage reflects the American public's shifting opinion.
"Even conservatives, even Republicans have family members, have coworkers, have neighbors and people who are willing to open their hearts and change their minds."
But, Wolfson says, supporting the protection of same-sex marriages is also politically strategic for Republicans. "Even though they are, in some sense, prisoners of their diminished but still present base that has extreme views that are out of touch with what the mass majority of Americans want, they can't win with just that base." South Carolina Republican Rep. Nancy Mace, who voted in favor of RMA in the House, reflected these sentiments when she said, "There are gay conservatives out there. And we just want to make sure they have a home."
A brief history of same-sex marriage in the U.S.
When same-sex marriage came into the forefront of mainstream American politics, conservatives often argued that it was a novel idea, as when Supreme Court Justice Samuel Alito said same-sex marriage is an "institution which is newer than cellphones or the internet" during oral arguments on California's Proposition 8. But there isn't exactly "a historical starting point for same-sex marriage any more than there is a historical starting point for marriage between men and women," says Rachel Cleves, who is a professor of history at the University of Victoria and has studied same-sex relationships that go as far back as the 1800s.
When we actually look at attitudes towards the same sexuality in the past, it doesn't look like a straight line at all.
Rachel Cleves, historian
"When conservatives argued same-sex marriage was a new invention, [it was] a means of preventing the legalization of same-sex marriage in the United States," she says.
In the wake of the 1969 Stonewall riots, the modern American gay rights movement gained momentum, with leaders like Sylvia Rivera and Marsha P. Johnson emerging, and making major political strides. However, it wasn't until the 1990s that efforts to legalize same-sex marriage began to pop up across the country. Civil unions for same-sex couples existed in several states, often with "separate but equal" standards — same-sex couples were denied access to more than 1000 federal rights that came with marriage for heterosexual couples. Then, in 1996, the Defense of Marriage Act (DOMA) was signed into law, defining marriage as an agreement shared between a man and a woman.
In 2003, gay rights advocates celebrated a win when the Supreme Court struck down sodomy laws in the Lawrence v. Texas decision and Massachusetts became the first state to legalize same-sex marriage. Though federal politicians, including President George W. Bush, opposed same-sex marriage, states began taking matters into their own hands, striking down bans and codifying same-sex marriage into state laws.
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About a decade later, Edith Windsor challenged the Defense of Marriage Act and, in 2013, the Supreme Court deemed DOMA unconstitutional, though the decision was limited to 13 states and the District of Columbia.
Two years later, in the landmark decision Obergefell v. Hodges, the Supreme Court held that same-sex marriage was a constitutional right in the U.S. and required all 50 states to perform and recognize such unions. That ruling is widely considered to be the most important same-sex marriage legislation in the U.S. and a turning point in the fight for gay rights.
Jim Obergefell and fellow plaintiff Luke Barlowe hug as they exit the Supreme Court on April 28, 2015 after oral arguments concerning whether same-sex marriage is a constitutional right.
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| Drew Angerer/Getty Images |
Enduring anti-LGBTQ sentiment and legislation
Despite increasing public and political support for same-sex marriage, the road to legalization and marriage equality has not been a straightforward one.
"We have a popularized notion of the history of same-sex sexuality, which sees the past as undifferentiated, homophobic, and then there was a period of progress. But when we actually look at attitudes towards same sexuality in the past, it doesn't look like a straight line at all," says Cleves.
"We've just seen this extreme outburst of homophobia in the public sphere and in politics in the last year. And I think that same-sex marriage is under dire threat, so I find this legislation critically important."
The push to codify marriage rights with the Respect for Marriage Act comes in the wake of the Supreme Court's decision in Dobbs v. Jackson, which held that access to abortion was not a Constitutional right. Justice Clarence Thomas noted in his concurring opinion that the rationale used to overturn Roe v. Wade could be used to overturn cases establishing other rights. This led advocates to fear that same-sex and interracial marriage might be next.
In 2021, state legislatures introduced a record number of anti-LGBTQ bills, especially those targeting trans youth. LGBTQ advocates and even lawmakers have linked such legislation to the rise in hate crimes against LGBTQ people, including the deadly shooting at a queer Colorado nightclub last week.
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When asked how he reconciles the passage of same-sex legislation through Congress with the ways in which queer people are under assault in much of the U.S., Evan Wolfson says, "Persuasion is not enough, even though it's an essential element. It's why you also need political engagement," to which he attributes much of the success of the same-sex marriage movement. For other LGBTQ rights to find similar success, he says political engagement needs to happen not only on the federal level but at the states.
Historian Cleves also sees the Respect for Marriage Act as a starting point for equal rights in America. "I hope that political support for sexual and gender diversity does not end at this stopgap measure for protecting same-sex marriage, but extends to protecting the rights of trans people, trans youth, to gender affirmation and gender expression." Remember herđŸ‘‡```
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