This week's same-sex marriage bill is important — but hardly enough
Same-sex marriage became the law of the land in 2015 thanks to the U.S. Supreme Court's landmark Obergefell v. Hodges decision.
Unfortunately, it could cease to be the law of the land through the very same process.
Earlier this year, Justice Clarence Thomas — in the context of overturning Roe v. Wade's abortion protections — wrote that the nation's highest court "should reconsider" its Obergefell decision. He also, it should be noted, identified other key rulings on contraception and privacy that could similarly be overturned.
"We have a duty to 'correct the error' established in those precedents," Thomas wrote.
Thomas' musings were a key reason why the U.S. Senate passed bipartisan legislation Tuesday to protect same-sex and interracial marriages through what was dubbed the Respect for Marriage Act. Twelve Republicans broke ranks to support the bill, which will likely pass the House next week. Earlier this year, 47 Republicans from that chamber joined a push to enshrine marriage rights.
While this development is a step in the right direction, it's important to recognize the ways in which this legislation falls short — as well as the ongoing threat right-wing ideologues like Thomas pose in the years ahead.
According to the National Conference of State Legislatures, 35 states still have same-sex marriage bans on the books, either in their constitutions, state law or both. In the absence of legislative action, those bans would take effect again should the U.S. Supreme Court move forward with invalidating Obergefell.
Pennsylvania, which had a state law prohibiting the recognition of same-sex marriage overturned by a lower U.S. district court in 2014, is one of those states.
“If Obergefell were reversed and any distinct court injunctions concerning the Pennsylvania statute were lifted, marriage would again become illegal for same-sex couples in the state,” University of Pennsylvania law professor Tobias Barrington Wolff told the Pennsylvania Capital-Star earlier this year.
But Wolff noted there are still a lot of unanswered questions, including what would happen to couples already married in Pennsylvania.
What is clear is that the Respect for Marriage Act does not protect all marriages.
The legislation requires the federal government to recognize same-sex marriages performed in states where it is legal. If Thomas got his way and Obergefell was invalidated, a same-sex couple married in Washington, D.C., for example, would be fine. Likewise, the federal government would recognize that marriage as valid, even if the couple moved to a state where such a ban was in effect.
But those living in Georgia, Michigan, Texas or other states with bans would no longer have any right to marry. Residents would need to travel to another state if they wanted to marry.
It's all eerily similar to the chaos that emerged from the court's overturning of Roe, creating a patchwork of confusing laws and court precedents that ultimately erodes the rights of ordinary Americans.
So, by our reckoning, it's a bit premature to declare victory — never mind the other ongoing battles over reproductive rights and access to contraceptives.
What we really need right now is a sweeping nondiscrimination bill, much like the Equality Act that passed the U.S. House in 2021 and has languished in the Senate ever since.
Without it, we will increasingly find that basic human rights are subject to the whims of state lawmakers without any predictability for what the future may hold.