Bill To Protect Same-Sex And Interracial Families Could Provide Critical Protection

After a tumultuous year for individual rights, on Wednesday, November 16th, the Senate advanced a bill that would help protect same-sex and interracial marriages from the same fate met by Roe v. Wade at the hands of the majority conservative Supreme Court. The bill would protect marriage if the Supreme Court decided to overturn the legal precedents that made them legal in the first place.

The Senate voted 62-37 to move the Respect for Marriage Act (RMA) forward. In addition to all the Senate Democrats, 12 Republican Senators voted in favor of the RMA, breaking the filibuster. But why is this bill necessary? Isn’t same-sex marriage and interracial marriage already legal? Here’s what to know.

Aren’t Same-Sex and Interracial Marriage Already Legal?

Yes. Same-sex marriage was made legal in Obergefell v. Hodges, a 2015 Supreme Court case that decided same-sex couples had the same legal rights to marry as other couples. Interracial marriage became legal in the Supreme Court case Loving v. Virginia in 1967.

But these Supreme Court decisions are just that — Supreme Court decisions in which bans on those marriages were deemed unconstitutional.

After Roe was overturned by the Supreme Court, the federal constitutional right to abortion disappeared. And with no federal law codifying the right to abortion, that legal precedent was immediately turned over to the states, where abortion was banned by about half of them.

Members of the LGBTQ+ community and advocacy groups were concerned that the newly conservative SCOTUS wiould overturn marriage equality after Justice Clarence Thomas signaled during the Dobbs hearing that resulted in the overturning of Roe v. Wade that he would be in favor of overturning Obergefell v. Hodges.

In his concurring opinion statement for the Dobbs ruling, Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Although Thomas did not mention Loving by name, the theory that was cited by the Supreme Court justices in overturning Roe led many legal experts to fear that interracial marriage could also be on the chopping block. “The legal reasoning that Justice Alito used to overturn Roe could be applied to undo Loving v. Virginia, signaling a new threat to interracial marriage as we know it,” the ACLU wrote. Codifying the legality of these marriages into federal law could help protect them.

What Will the Respect of Marriage Act Do?

The RMA will ensure that all marriages are recognized from state to state, no matter in which state they were performed; it will codify marriage equality and ensure that all married couples — regardless of race, sexuality, or gender — receive the benefits provided to married couples under federal law; and it will repeal the Clinton-era Defense of Marriage Act entirely.

This is important because if SCOTUS does eventually overrule Obergefell, the passing of the RMA would bound states by law to continue to recognize marriages made in other states regardless of where the couple resides.

According to the Human Rights Campaign, “Under the RMA, marriages, adoption orders, divorce decrees, and other public acts must be honored by all states consistent with the Full Faith and Credit clause of the U.S. Constitution. This adds additional protection for married couples and families.” The Full Faith and Credit clause requires states to recognize "public acts, records, and judicial proceedings of every other state."

The RMA was explicitly, and narrowly, written to provide legal protections in the event that SCOTUS overturns the federal right to same-sex or interracial marriage. There are some religious protections for “religious nonprofits” that allow them the right to “decline any involvement with a marriage... including a same-sex one.”

Part of the urgency to pass the RMA during this legislative session “has been the fallout from the Dobbs decision at the Supreme Court, where extremists undid 50 years of Roe v. Wade protections and jeopardized other rights,” Sen. Alex Padilla (D-Ca.) said. It is Padilla’s hope that the RMA will “provide the strongest protections possible while being very thoughtful to ensure the best legal defense.”

What Won’t The Respect Of Marriage Act Do?

Reason reporter Ilya Somin notes that although the RMA does provide “significant protection” for same-sex marriages, it “would not be a complete substitute” for the protections awarded by Obergefell.

That’s because, should Obergefell be overturned, states would be allowed to stop performing or offering same-sex or interracial marriages. The law only bars states from “denying recognition to same-sex marriages contracted elsewhere,” and requires federal protection for all marriages. Currently, couples of all types can get married in any state in the USA.

Per Grid, “If Obergefell is overturned... and there is no federal effort to protect same-sex marriage... thirty-five states ban same-sex marriage in their state constitution, by law, or both.”