Senate Really About To Protect Gay Marriage, Honest To F*ckin God

The US Senate voted Wednesday to advance the Respect for Marriage Act (RFMA) in a 62 to 32 procedural vote that brings the bill to the floor for debate, the first step toward passing it (which could happen as soon as Friday). And yes, you read that total right: A dozen Republicans voted to protect marriage equality, so this bill will not be filibustered. This is a big heckin’ deal, especially since June’s Supreme Court decision overturning Roe v. Wade has some on the anti-LGBTQ Right excited about trying to overturn Obergefell v. Hodges and make all the same sex marriages go away in a puff of shredded precedents.

Let’s take a moment to recognize the 12 Republican senators who joined all 50 Democrats in voting to advance the bill, because we want to reinforce good behavior. They are: Roy Blunt (Missouri), Richard Burr (North Carolina), Shelley Moore Capito (West Virginia), Susan Collins (Maine), Joni Ernst (Iowa), Cynthia Lummis (Wyoming), Lisa Murkowski (Alaska), Rob Portman (Ohio), Mitt Romney (Utah), Dan Sullivan (Alaska), Thom Tillis (North Carolina), and Todd Young (Indiana).

While the bill doesn’t exactly “enshrine Obergefell in law” (we’ll get to why in a moment), as Mark Joseph Stern explains at Slate, it accomplishes two important things for securing the right to marriage equality: “It repeals a bigoted federal statute while creating a crucial backstop for marriage equality in the states if the Supreme Court overturns Obergefell v. Hodges. As recently as 2015, it would’ve been unthinkable that such a sweeping bill could pass into law.”

Also too, Stern notes that while RFMA is limited compared to the protections afforded by Obergefell, its

central provisions will only become relevant if the Supreme Court overturns its marriage equality decisions. The RFMA will benefit same-sex couples if, and only if, SCOTUS overrules the right to equal marriage.

All the more reason for the Senate to keep confirming Biden appointees to the federal courts and to talk serious reform to the Supreme Court. For fuckssake.

For starters, the RFMA would repeal the old 1996 “Defense of Marriage Act” (DOMA), which had barred the federal government from recognizing same-sex marriages, at least until the Supreme Court found DOMA unconstitutional in 2013, in US v. Windsor. Again, here’s Stern:

It replaces DOMA with a requirement that the federal government recognize any marriage that was “valid in the place where entered into.” So if a same-sex couple obtains a valid marriage license from any state, the federal government must recognize their union.

That’s huge, because while the Obama administration used executive action to apply Windsor to all sorts of federal laws that affect married couples — from the tax code to labor rules — a future rightwing president could just as well use executive orders to roll back those gains and start selectively discriminating against same-sex couples. With the RFMA in place, that couldn’t happen.

The other main part of the RFMA would require all states to recognize valid marriages performed in all other states. As Stern explains, this provision of the bill has left some progressives wary, because unlike Obergefell, it doesn’t mandate that states issue marriage licenses to same-sex couples. RFMA won’t require Idaho to issue a marriage license to a gay couple, but if the couple goes to Washington and gets married (or gets married by videoconference with a judge in Seattle), Idaho would have to respect their marriage, just like in the name of the law.

So why the hell doesn’t the law simply back up the protections of Obergefell and require all states to issue marriage licenses to any adult couple what wants one?

As Stern ‘splainers, it’s because the authors of the bill know their constitutional law better than random bloggers, that’s why, smartass. Congress

wanted to remain on firm constitutional ground, and that’s as far as the Supreme Court could plausibly let it go. Time and again, the court has ruled that the federal government cannot “commandeer” states to enforce federal laws or pass specific statutes. If Congress compelled states to license same-sex marriages, the judiciary would invalidate the law as a violation of this anti-commandeering doctrine.

The federal government’s authority to make states recognize same-sex marriages, by contrast, is extremely well-established, and very likely to be upheld. That’s because the Constitution’s full faith and credit clause gives Congress the power to make states grant “full faith and credit” to the “public acts, records, and judicial proceedings” of other states.

Without an actual amendment to the Constitution, Congress just plain can’t require states to issue marriage licenses, although that remains the requirement as long as Obergefell is in place.

Congress’s ability to compel states to recognize other states’ official bidness is, Stern explains, central to having “nationwide uniformity in family law,” so that if you have full custody of your kids in Delaware, your weird ex can’t head to Florida to claim full custody there — or to escape an order to pay child support.

Along similar lines, the RFMA also protects the parental rights of same-sex couples, including adopted kids or children born with the help of a donor. As Stern notes, “This provision is incredibly important at a time when some Republicans are trying to deny same-sex couples the myriad rights of parentage.”

To win support from Republicans, the Senate version of the bill added language to protect “religious liberty,” which Stern says is nothing to worry about, even if the words “religious liberty” make your magical Ankh pendant glow blue in warning. The good news is that none of the religious liberty stuff involves allowing discrimination against LGBTQ+ people in the name of religion.

One clarifies that “nonprofit religious organizations” are not compelled, under federal law, to provide goods, services, or facilities “for the solemnization or celebration of a marriage.” This provision merely reflects the status quo. It does not preempt state civil rights laws that might bar a commercial nonprofit (think the Salvation Army) from discriminating against gay people.

Heck, even the LDS church, which is still solidly opposed to same-sex unions, supported the bill, so that’s something.

The bill also won’t affect the eternal argument over whether private businesses can cite their beliefs to avoid baking Gay Penis Cakes, although Stern notes the Supremes may soon “give businesses and nonprofits a right to discriminate, rendering this provision irrelevant, anyway.” The right to roll your eyes in disgust will at least remain.

Also too, the bill specifies that the feds don’t have to recognize polygamous marriages, which no states are pushing for anyway, but the provision made conservatives happy and they can call it a win even if it doesn’t matter. Also, while no states or even rightwing politicians have been calling for Loving v. Virginia to be overturned, RFMA applies equally to same-sex and interracial marriages, just in case the Supreme Court happens to decide 1967 isn’t grounded firmly enough in the nation’s history and traditions.

I was five at the time, and the only thing I remember is that we got a puppy, so that may have been an iffy year, even if it had The Graduate, The Dirty Dozen, The Producers,Cool Hand Luke, and Bonnie and Clyde going for it. But 1967 also gave us the first Casino Royale, which apart from the Burt Bacharach/Herb Alpert soundtrack was a mess. The opening theme was a banger, though.

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In conclusion, this is a very good bill that even got the support of a Dozen Republicans who decided not to be Dirty for a change, and unless three of them inexplicably change their minds by Friday, it’ll be a good law.

[Washington Blade / Bill text / Slate / Image: SketchyJackie on DeviantArt]

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