A new bill aims to protect same-sex marriage. What would it do if Obergefell falls?
Originally published by The 19th
Democrats and 47 Republicans in the House joined forces this week to protect marriage equality at the federal level as legal experts and LGBTQ+ advocates grow increasingly worried those protections are in danger following the overturn of Roe v. Wade.
The bill, known as the Respect for Marriage Act, has support from some Senate Republicans, but is not guaranteed to pass the chamber. If successful, it would repeal the Defense Of Marriage Act — which kept the federal government from recognizing LGBTQ+ marriages — and require federal law to recognize LGBTQ+ marriages performed in states where it is legal or was legal at the time of the marriage.
Although the bill offers federal and interstate protections, it would still allow states to deny couples the ability to marry within their own state if Obergefell v. Hodges — the Supreme Court case that federally guaranteed marriage equality — is overturned, multiple experts told The 19th.
LGBTQ+ legal experts fear that the ruling in Dobbs v. Jackson Women’s Health Organization — the case that overturned Roe — signals a court willing to disturb significant legal precedent. Experts are specifically concerned about other cases surrounding the right to privacy, including Obergefell and other landmark cases like the right to LGBTQ+ intimacy and sexual relationships (Lawrence v. Texas), the right to contraception (Griswold v. Connecticut) and Loving v. Virginia, which found that laws banning interracial marriages violated the 14th Amendment.
“The Dobbs decision has changed the legal landscape for our families,” PFLAG National, an advocacy group for LGBTQ+ families said in a statement when the bill was brought into the House earlier this week.
The stakes of the court overturning Obergefell would be high: 35 states still have laws banning marriage equality on the books, though not all of those states would necessarily ban it should Obergefell be reversed.
Although the Respect for Marriage Act would require states to legally recognize same-sex marriages that occurred in other states, there is still no mechanism to allow couples to marry in a state that didn’t want to issue them a marriage license, said Jon Davidson, senior staff attorney for the ACLU’s LGBTQ & HIV Project.
Cary Franklin, the faculty director of the LGBTQ+ research center the Williams Institute and chair of law at the UCLA School of Law, said that the House bill still offers significant protection as technically, if any one state in the country would still allow same-sex marriage if Obergefell was overturned, Americans would be able to travel to that state to get married and their home state would have to recognize that marriage.
“There may be people who face serious obstacles to travel or somehow cannot get into another state, so I’m not going to say it’s a 100 percent cure-all,” she said. “But it’s a pretty good protection.”
LGBTQ+ people of color and transgender people — who face higher levels of poverty due to the compounding effects of racism, transphobia and barriers to housing and job security — as well as poor people would be among those facing those greater obstacles due to the costs of travel, she said.
Mary Bonauto, civil rights project director of GLBTQ Legal Advocates & Defenders, said that while there is no legal standing for the Supreme Court to overturn Obergefell based on the recent decision reversing Roe, if the landmark decision were to be reversed, this act would offer partial protection to LGBTQ+ couples.
“So, I live in Austin, and I go to my town hall to get a marriage license, marry my spouse of the same sex and they say no, that’s one thing. But then if I travel to Illinois and I get married, and I come home, I still have to be treated by the Texas government as married,” Bonauto said. “So that’s the distinction that’s being made here.”
Jim Obergefell, the named plaintiff in the landmark Supreme Court case and now a candidate for the Ohio House of Representatives, told The 19th via text that while he’s heartened by the House passage and hopes the Senate will do the same, the bill doesn’t extend all the state-level protections needed to preserve marriage equality if the Supreme Court were to overturn his case.
Many LGBTQ+ and civil rights groups praised the House vote as a key step to enshrine LGBTQ+ protections and pushed the Senate to follow suit, noting the current record level of support for marriage equality across the United States. While 71 percent of Americans back same-sex marriage, per Gallup’s latest finding, the recently gained right feels precarious to many after the fall of Roe.
“To a large extent it feels like everything is up for grabs right now. That’s why people are worried,” Davidson said.
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However, Bonauto notes that there is not a direct line between overturning Roe and using that same reasoning to overturn Obergefell — since there is additional legal basis used to support marriage equality that was not centrally focused in Dobbs, like rights under the Equal Protection Clause.
Ripple effects from the Dobbs ruling implicating LGBTQ+ rights come amid many other attacks, including legal fights over anti-trans bills and a recent federal judge’s decision blocking the Biden administration’s LGBTQ+ protections in Title IX.
Experts also say that LGBTQ+ people in the South are particularly vulnerable if Obergefell is overturned.
“All LGBTQ Southerners live in a state with laws prohibiting the freedom to marry — laws that are unenforceable because of the U.S. Supreme Court’s Obergefell ruling,” Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality and Democratic candidate for North Carolina’s 11th District, said in a statement.
After the Dobbs decision, Beach-Ferrara expects to see more attacks on transgender health access and more fights against family rights for LGBTQ+ people.
“If, God forbid, we get to a future point where Obergefell gets overturned, we would expect the South to be an epicenter,” she said.
Black LGBTQ+ and same-gender loving people would be especially vulnerable, said Victoria Kirby York, deputy executive director of the National Black Justice Coalition — since they live in Black Southern communities more than anywhere else in the United States.
Banning interracial and same-sex marriage would greatly negatively impact the ability for Black LGBTQ+ people to build generational wealth and protect families for generations, as it already did when such laws were in place, she said.
“The Dobbs decision has made it clear that we must all be prepared for the worst,” she said via text.
For Davidson, one concern is that local officials could refuse to issue marriage licenses or perform marriages even without Obergefell being overturned — as Kim Davis, a former Kentucky clerk, did in 2015.
“I want people to know that we have a lot of reason to fight,” Bonauto said.
Photo by Dana Todd Photography
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