Charlotte Clymer is terrified. The 36-year-old activist and writer has been preparing for the Supreme Court to overturn Obergefell v. Hodges, the 2015 case that legalized same-sex marriage nationwide, ever since a member of the high court questioned its validity in an opinion in the Dobbs decision that ended a federal right to an abortion. Democratic lawmakers found the votes to pass the Respect for Marriage Act to protect same-sex marriage rights at the federal level. But rather than take hope from that, Clymer sees it as an omen.
“This bill is the equivalent of getting the lifeboats prepared for the ship to go down,” said Clymer.
The Respect for Marriage Act, which passed the Senate in a 61-36 vote, with 12 Republicans joining Democrats to vote for it (and three senators not voting), would require that states recognize marriages as long as they are valid in the state where they were performed. (The bill now goes to the House for another vote before it goes to President Biden to be signed.) In doing so, it would repeal the 1996 Defense of Marriage Act, which defined marriage for federal purposes as the union between one man and one woman and allowed states the power to refuse same-sex marriages granted in other states. Supreme Court rulings in United States v. Windsor and Obergefell voided the law, but many LGBTQ advocates worry those protections may be at risk under the current court.
In his opinion in the Dobbs v. Jackson Women’s Health Organization ruling, Justice Clarence Thomas wrote that the court “should reconsider” cases such as Griswold v. Connecticut, Lawrence v. Texas and Obergefell to be consistent with its ruling that the right to abortion is not provided in the Constitution.
Same-sex marriage bill
Clymer, a transgender woman, called the Respect for Marriage Act “imperfect” while stipulating that it was still “necessary to protect millions of families who otherwise wouldn’t have those protections.”
Her sentiments were echoed by other advocates whose reactions to the bill’s passage in the Senate toggled between a sense of relief and dismayed resignation.
Clymer and others believe the Equality Act, which would prohibit discrimination based on sex, sexual orientation and gender identity, would provide much better protections for LGBTQ individuals. But few are optimistic it would get the support it needs in the incoming Congress.
The Human Rights Campaign has been a vocal supporter of the Respect for Marriage Act, which it argues is an important step forward in having the federal government proclaim that it will no longer discriminate against interracial or same-sex couples.
“A big tenet of what is happening in the Respect for Marriage Act is a total repudiation of the Defense of Marriage Act,” said Kelley Robinson, incoming HRC president.
But Robinson shared Clymer’s concerns about the legislation’s limitations.
“We’re living in a moment in the post-Dobbs world,” Robinson said. “Every day, so many Americans are waking up wondering if their civil rights will be under attack next.”
Currently, 35 states have bans on same-sex marriages on the books, with 15 states and the District having no statutes or constitutional amendments prohibiting same-sex marriage.
Mo Zebdi, a 27-year-old engineer and gay man living in Washington state, believes that the Respect for Marriage Act is a much-needed stopgap but also feels that it marks something of a retreat for queer rights.
“Yes, this is a win. But it’s not the unalloyed, pure win that people are pitching it as. As a community, we can do better than this,” said Zebdi.
Zebdi has also taken the Dobbs decision as another sign of civil rights protections backsliding and sees the recent wave of anti-trans legislation as a predictor of the future for queer people in the United States. “When push comes to shove, it feels like the LGBTQ community is one of the first that gets hung out to dry.”
Other LGBTQ community members are frustrated with the concessions that Democrats in Congress made while same-sex marriage is still the law of the land. An amendment to the Respect for Marriage Act clarifies that the bill would not allow the federal government to recognize polygamous marriage and confirms that nonprofit religious organizations would not have to provide “any services, facilities, or goods for the solemnization or celebration of a marriage.”
“Obergefell has not been overruled yet, and Congress acted as if it had,” said Diana Adams, executive director of the LGBTQ legal nonprofit Chosen Family Law Center, based in New York. “I wish that there had been some way to push harder to not make quite as many concessions here for religious exemptions and for other states.”
Adams, a 43-year-old who identifies as bisexual and polyamorous, was concerned with the act’s wording around religious exemptions. “It really enumerated, for a page, different religious exemptions in language that was quite vague and, I thought, could really open the door to even an expansion of Religious Freedom Restoration Act protections, which I found really alarming,” Adams said, referring to the 1993 federal law that “ensures that interests in religious freedom are protected.”
The religious exemptions were one of the reasons that the Church of Jesus Christ of Latter-day Saints, which previously supported the Defense of Marriage Act, came out in support of the Respect for Marriage Act.
Other concessions also troubled Adams, who as an attorney has assisted many LGBTQ individuals who must travel to get married or become parents. They said, “It is a tremendous amount of indignity when you have to leave your hometown to get married or have your parental rights recognized.”
David Roth, a former Senate candidate from Idaho and gay single father, understands that indignity and is fearful of what could happen to his family in the future.
“I actually do worry at some point, with the direction that we’re going, someone might come by and say, ‘We’re actually going to invalidate all of [the gay parental guardian] adoptions,’ ” he said.
The Respect for Marriage Act gives Roth more comfort that his family will be protected if the Supreme Court cases that allowed him to foster and adopt his children are overturned. “Is it perfect? No. Does it accomplish everything we want it to? No. Is it a step in the right direction? Yes. Does it provide some safeguards for families like mine? Absolutely, it does.”
Roth pointed to the recent election as evidence that the act might be the best supporters of LGBTQ rights can hope for right now. “We just lost the House,” he said. “We’re not going to get any better than this.”