Same-sex spouses and their families will breathe a little easier this week after the U.S. House of Representatives passes the Respect for Marriage Act and sends it to President Joe Biden for his promised signature. The act repeals the 1996 Defense of Marriage Act, defining marriage exclusively as the union of a man and a woman, and requires states to recognize valid same-sex and interracial marriages performed in other states.
The Respect for Marriage Act does not require states to license same-sex marriages. It protects the right of religious institutions to refuse to perform or sanction same-sex marriages and shields them from discrimination lawsuits — concessions Democrats made to attract enough Republican votes to pass it without a filibuster in the 50-50 U.S. Senate.
Marriage equality should be settled constitutional law. Supreme Court decisions in United States v. Windsor (2013) and Obergefell v. Hodges (2015) struck down the heart of DOMA and established a constitutional right to same-sex marriage.
However, no precedent seems safe in light of the Supreme Court’s decision in June to overturn the constitutional right to abortion established by Roe v. Wade in 1973.
Justice Samuel Alito’s assurance that nothing in the abortion decision “should be understood to cast doubt on precedents that do not concern abortion” is undermined by Justice Clarence Thomas’ explicit call for the court to “reconsider” precedents also grounded in the right to privacy — namely, Obergefell and Griswold v. Connecticut, the 1965 decision invalidating laws against birth control. That disconnect turned a political “messaging bill” into a legislative imperative.
If the court were to strike down Obergefell, marriage protections could vanish overnight in 35 states that ban same-sex marriage by law or in their constitutions. The Respect for Marriage Act is a necessary backstop.
That matters to gay couples who, thanks to Obergefell, enjoy all the benefits and responsibilities of marriage enjoyed by heterosexual couples, such as filing taxes jointly, claiming Social Security benefits based on a spouse’s work history, avoiding federal estate taxes and obtaining parental rights. As Justice Anthony Kennedy wrote in his majority opinion in Obergefell, “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.”
The justices should not view the Respect for Marriage Act as an invitation to strike down Obergefell. Its compromises were the best we could hope for in a closely divided, highly partisan Senate — and yet it is “half a loaf” for gay couples in those states that would outlaw gay marriage if Obergefell were not in place.
Meanwhile, the fight for LGBTQ equality is far from over. As we write, the Supreme Court is hearing arguments in a case that would allow businesses to withhold services to same-sex couples on religious freedom and free speech grounds. Anti-LGBTQ violence — especially against trans people — is on the rise.
We happily note that 12 Senate Republicans joined 49 Democrats in passing the bill last week. The bipartisan vote represents a rapid turnabout in support for LGBTQ rights. In 1996, the Senate passed the Defense of Marriage Act by a vote of 85-14, with 33 Democrats voting in favor. It was signed into law by a Democratic president, Bill Clinton. That same year, 27% of Americans polled by Gallup said same-sex marriages should be valid. By 2021, that number had grown to 70%.
Senate passage also vindicates Senate Majority Leader Chuck Schumer’s controversial decision to delay a vote until after the election. Schumer, in an October meeting with the editorial board, said he was confident lead negotiators Tammy Baldwin and Kyrsten Sinema had more than enough GOP votes to pass the bill. Making it a campaign issue would have torpedoed it.
Now it’s up to the House to pass the Senate version of the Respect for Marriage Act. Rep. John Katko, R-Camillus, voted for it the first time around and we expect him to do so again. It’s the right thing to do to show respect to the legal unions of millions of gay couples who value the institution of marriage so highly that they fought hard to join it.
About Syracuse.com editorials
Editorials represent the collective opinion of the Advance Media New York editorial board. Our opinions are independent of news coverage. Read our mission statement. Members of the editorial board are Tim Kennedy, Trish LaMonte, Katrina Tulloch and Marie Morelli.
To respond to this editorial: Submit a letter or commentary to letters@syracuse.com. Read our submission guidelines.
If you have questions about the Opinions & Editorials section, contact Marie Morelli, editorial/opinion lead, at mmorelli@syracuse.com