The Respect for Marriage Act is The First Step in Protecting Marriage, But Not The Endgame: Why the Congressional Effort Can’t Be the End of the Fight

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On December 8, 2022, Congress formally passed the Respect for Marriage Act, an effort to provide protections for same-sex and interracial marriages in anticipation of an overturn of Obergefell v. Hodges and Loving v. Virginia, respectively. President Biden signed the bill into federal law on December 13. Concerns for protecting civil rights, specifically gay marriage and interracial marriage, have grown following Supreme Court’s Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women's Health Organization. Thomas argued that the Supreme Court “should reconsider all of this court’s substantive due process precedents,” which insinuated a potential overturn of Obergefell, which guarantees the right to same-sex marriage. While not implicated in Thomas’ statement, Loving, which guarantees the right to interracial marriage, could also be at risk following the Dobbs decision. 

The Respect for Marriage Act enshrines some of the protections established in Obergefell and, notably, codifies federal recognition of same-sex and interracial marriages. The bill also repeals the Clinton administration’s Defense of Marriage Act (DOMA), which outlined marriage as a union only between a man and woman and which disallowed the federal government from acknowledging same-sex marriages. All of the provisions in the DOMA were struck down by the Supreme Court’s decisions in Obergefell and Windsor v. United States, and this repeal asserts that none of the DOMA can be reinstated. The bill also mandates that the federal government, as well as every state, must acknowledge same-sex and interracial marriages, but does not require that all states issue marriage licenses to same-sex and interracial couples. More than 30 states still have ratified same-sex marriage bans, which would go back into effect in the case of an overturn of Obergefell. Under potentially reinstated laws like these—even though the Respect for Marriage Act strikes down certain provisions banning same-sex marriages themselves—same-sex couples would be required to travel across state lines to obtain marriage licenses in the minority of states that grant them.

The Respect for Marriage Act makes a statement about legislative and presidential intentions to ensure civil rights, and takes important steps to protect these rights, which are both accomplishments worth celebrating. President Biden’s signature orients the White House firmly around protecting civil rights after the Dobbs decision. Moreover, whether intentional or not, the bill will likely protect Congressional Democrats and the Biden administration from criticisms about failing to codify legal protections while holding the presidency and a majority in both chambers of Congress. Former President Obama and President Biden faced considerable criticism for their inaction during their respective terms following the Dobbs decision. This congressional bill would protect some marriage rights, and it provides the opportunity to Democrats to claim credit as being protectors of these civil rights.

Senator Elizabeth Warren (D-MA) called the bill “an important first step,” and told Vox: “We could go one step further and ensure that every state provides an opportunity for equal marriage, but that will have to wait for another day.” This may be true, but ensuring that every state provides equal access to same-sex and interracial marriage shouldn’t have to wait for a later occassion. The Respect for Marriage Act was hastened through Congress, at least in part, because of the concerning statements about reconsidering Supreme Court precedents made by Justice Clarence Thomas, and the risk that this might pose to civil rights. But if Congressional Democrats’s concern is that Obergefell is at immediate risk, shouldn’t legislators be moving to ensure that all the provisions of Obergefell are protected? Thus, ensuring that all same-sex and interracial couples have access to marriage licenses across the country isn’t something that can wait for another day, it is a provision that Democrats across both houses of Congress must push for now. Congressional Democrats should move to ensure that each provision of Obergefell is codified into federal law, which would be an important step further in granting equal access to all.

Many advocates feel divided about the Respect for Marriage Act: Todd Delmay, whose same-sex marriage to partner, Jeff, was amongst the first performed in the state of Florida, said: “I’m sort of divided…I do see this as a positive step. I don’t think we should celebrate too much.” In his piece for The Washington Post, Columnist Jonathan Capehart—who acknowledges that he is pleased the Senate passed the Respect for Marriage Act—says: “What in the second class citizenship? And don’t get me started on the financial burden this would place on couples,” to the prospect that gay and interracial couples may have to travel out-of-state to obtain marriage licenses. Ultimately, while the Respect for Marriage Act is an important step forward, for many advocates, it doesn’t do enough to ensure equality for same-sex and interracial marriages.

Particularly in light of the midterm elections, which flipped the House of Representatives to a Republican majority, ensuring the provisions in Obergefell and Loving should be an immediate concern. Unfortunately, the Respect for Marriage Act was at least partially split down party lines: the bill passed the Senate 61-36, with only 12 Republican Senators voting in favor of codifying same-sex and interracial marriage into federal law. Thus, the Republican majority in the House of Representatives, as well as the questions surrounding voter turnout and the future of the Democratic and Republican parties before the 2024 elections, could spell trouble for any ideas about ensuring that every state provides equal access to, and protection of, same-sex and interracial marriage. It is essential that every provision in Obergefell and Loving be enshrined into law, and while the Respect for Marriage Act is one step closer to guaranteeing this—and thus, worthy of celebration—Congressional Democrats must not see the passage of the bill as the end of the road. While the Respect for Marriage Act may have omitted important clauses in order to expedite its passage, it is essential that these provisions be passed into law rather than ignored or overlooked. Democrats must continue to push measures that ensure equal access to marriage for same-sex and interracial couples across all 50 states, an important sign-post in accepting marriages and guaranteeing that no couples feel like second class citizens.

Kyra Chassaing is a Staff Writer for Columbia Political Review and a first-year in Columbia College from Bethesda, Maryland. In her free time, she enjoys baking, reading, and hiking.