Should the Supreme Court overturn Obergefell, the patchwork of state bans for marriages of same-sex couples would suddenly came back into force, as was the case with abortion trigger laws this summer.
First introduced to Congress in 2015 prior to Obergefell, the Respect for Marriage Act won’t force states to grant marriage licenses to same-sex couples, but it would make clear that the federal government would recognize any married couple’s legal rights, benefits, or protections, even if they lived in a state that outlawed marriage between same-sex partners.
Hence, even if some states decided to no longer allow same-sex or interracial couples to wed, the federal government would still recognize such marriages that were legally performed in other states. States would also have to recognize such marriages that were legally performed elsewhere.
The bill would also formally repeal the Defense of Marriage Act of 1996, which had denied such federal rights and benefits in the first place. (The key section of that law was struck down in 2013 in Windsor v. US, another Supreme Court case that activists fear could be now under threat.)
“The fight for marriage equality in Congress opened with the Defense of Marriage Act in 1996, and we feel like the Respect for Marriage Act closes that chapter,” said David Stacy, government affairs director for the Human Rights Campaign.
Stacy, who previously worried that Thomas was trying to invite legal challengers to bring cases against marriage equality to the federal courts, said Congress was signaling to the court and others through this law that the issue was “settled.”
“I don’t think I can get into Justice Thomas’s head,” Stacy said. “But I hope what he takes away from this is, ‘I shouldn’t have put that into decision, and I should put this idea that we’re gonna revisit this out of my mind and focus on the cases coming before the court and not soliciting challenges to existing law.’”
Polls show more than 70% of Americans now support marriage equality — an inverse from the 70% who opposed when the Defense of Marriage Act first passed.
Bonauto, who was among the lawyers who argued Obergefell before the Supreme Court, pointed out that while the LGBTQ community continues to gain acceptance, there are many other political and legal threats that pose a danger, especially to transgender and nonbinary youth.
“This is a very, very hard time,” Bonauto said. “At the same time, there is a message of hope in this vote, and the long process of engagement that turned a majority against us to a majority with us.”
