Will Same-Sex Marriage Stay Legally Protected? The Answer is Complicated

With the fall of Roe v. Wade threatening other Supreme Court precedents, the Respect for Marriage Act has been introduced in order to encode the right to same-sex and interracial marriage into law. Although same-sex marriage has been legal in the US since 2015’s Obergefell v. Hodges case, right-wing groups are framing this bill as something new, all while making antiquated claims that it will lead to polygamous and incestuous marriages.

In his concurring opinion for the Dobbs v. Jackson Women’s Health Organization ruling which revoked the right to abortion, Justice Clarence Thomas signaled that other Supreme Court rulings should be reexamined as well, including those that bestowed the right to contraception, same-sex intimacy and marriage. The Respect for Marriage Act was subsequently passed in the House of Representatives last month. One of its lead sponsors is Tammy Baldwin, D-Wisconsin, the first out-LGBT senator.

The bill now heads to the Senate, where it will have to overcome the 60-vote filibuster threshold to be signed into law. In addition to the 50 senate Democrats in support of the bill, 5 Republicans have publicly stated their support. These include the bill’s co-sponsors—Sen. Susan Collins (Maine) and Sen. Rob Portman (Ohio)—along with Sen. Ron Johnson (Wisconsin), Sen. Lisa Murkowski (Alaska),  and Sen. Thom Tillis (North Carolina). Sen. Tammy Baldwin also indicated in an interview with PBS that five more unnamed Republican senators are leaning in support.

Although the Respect for Marriage Act would only encode into law what has already been legal for the past seven years (and the past half century, regarding interracial marriage), right-wing groups have launched an effort to persuade senate Republicans to oppose it. This included claims that it will expand on the court’s ruling in Obergefell, appeals to religious freedom, and a host of tired (and demonstrably false) slippery slope arguments.

According to The Advocate, a letter sent to Mitch McConnell and signed by 83 conservative leaders claimed that the bill “would require federal recognition of any one state’s definition of marriage without any parameters whatsoever. This would include plural marriages, time-bound marriages, open marriages, marriages involving a minor or relative, platonic marriages, or any other new marriage definition that a state chooses to adopt, including through undemocratic imposition by a state Supreme Court.” However, not a single state has even proposed legalizing these types of marriages.

The letter goes on to claim that the bill would violate religious freedom by not permitting religious nonprofits with government contracts to discriminate against LGBTQ+ people (in regards to foster care and adoption). Another claim is that the bill will somehow interfere with the tax-exempt status for churches—which is not a part of the bill.

In spite of these efforts, the Respect for Marriage Act will move forward for a vote in the US Senate. Given the August recess, Sen. Baldwin is hopeful the vote will take place in September.