Anticipating an increasingly activist Supreme Court and wary of further incursions on LGBTQ+ and other rights, Democrats sprung into action. A unique combination of factors—a lame-duck session of Congress, fear of a future attack on Obergefell v. Hodges, and a turning tide of public opinion on marriage equality—paved the way for the signing of the Respect for Marriage Act on December 13.
But while the legislation was intended as a buttress against right-wing attacks on LGBTQ+ rights, activists have criticized the Respect for Marriage Act for writing Republican religious liberty exemptions into law and focusing on an issue that impacts only a small and wealthy portion of the LGBTQ+ community. While the RFMA provides federal recognition for lawfully conducted same-sex marriages, it does not require any state to issue same-sex marriage licenses, but instead demands that states recognize same-sex or interracial marriages performed across state lines.
If Obergefell were to be overturned, same-sex marriage would likely become illegal in 35 states, the number that currently have same-sex marriage bans on the books. While a couple could theoretically travel to another state to get a marriage license, to later have it recognized by their home state, the Respect for Marriage Act risks creating a two-tier system of marriage equality in lieu of total federal protection.
As The New York Times reported, a $1.7 million campaign by Centerline Action, a conservative nonprofit; Ken Mehlman, a former chairman of the Republican National Committee; and Reginald Brown, a lawyer for President George W. Bush, worked to drum up Republican support for the Respect for Marriage Act. Ultimately, their efforts were successful, with 12 Republicans joining Democrats in the Senate in favor.
Why would high-level Republican operatives throw their time and money behind the Respect for Marriage Act? And why now? Activists say it’s about religious liberty. Chrissy Stroop, a prominent member of the “exvangelical” movement and author of Empty the Pews: Stories of Leaving the Church, described the Act’s religious liberty exemptions as a way for the “right to discrimination to remain unchallenged.”
Stroop described the Respect for Marriage Act as a sly way for Republicans to hide behind the language of inclusion while cementing further protections for religious individuals to discriminate against LGBTQ+ Americans. The law itself states that “nonprofit religious organizations shall not be required to provide services…for the solemnization or celebration of a marriage.” Like in 303 Creative LLC v. Elenis, which is set to test the limits of the First Amendment when applied to nondiscrimination in public accommodation, the Respect for Marriage Act reaffirms an individual’s right to refuse service if doing so would violate their firmly held religious beliefs.
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And while the Respect for Marriage Act might represent a calculated political maneuver to enshrine religious liberty protections within a “rights-based” law, Kenyon Farrow, an LGBTQ+ activist and writer, calls attention to the political calculus Republicans made when deciding to support the measure.
“[Republicans] are animating homophobia and transphobia in other ways, just not attacking marriage equality specifically because…the American public has grown to approve of gay marriage,” Farrow said.
The Republicans who sided with Democrats in supporting the Respect for Marriage Act were right to identify shifting public opinion. Polling commissioned by Centerline Action in the lead-up to RFMA’s passage indicates that 73 percent of Americans approve of same-sex marriage, including a majority of Republicans. And while marriage equality isn’t an animating issue for most Republican voters, independents who have been put off by Republican attacks on LGBTQ+ rights in state legislatures should find all the more attractive a candidate who supports a measure as popular as marriage equality.
But Centerline Action’s interest in the Respect for Marriage Act goes beyond political considerations. Yasmin Nair, cofounder of Against Equality, an organization dedicated to critiquing the fight for marriage equality, and policy director of the Chicago queer collective Gender JUST, points to some shared values: “The right recognizes what marriage means within a social framework, long-term commitment, heteronormative relationships, and so on.” Centerline Action doesn’t hide its belief in “strong families and relationships,” as it details on its website, and the Respect for Marriage Act with its emphasis on traditional family values has some genuine appeal.
But Nair and Against Equality’s critique isn’t limited to the right, but also touches on Democrats’ overriding focus on marriage and the family in lieu of broader protections for all LGBTQ+ Americans. In the lead-up to Obergefell, proponents of marriage equality frequently pointed to the dozens of state benefits that accompany marriage, including the ability to join a spouse’s insurance plan and legal decision-making power in the case of an incapacitating illness.
The problem, according to John D’Emilio, a professor emeritus of history and gender and women’s studies at the University of Illinois at Chicago, is that “more and more people spend more and more of their adult life not being married. And to have so many social benefits attached to the status of marriage means that more and more people are left out of core kinds of benefits that marriage provides legally.”
In many other countries, access to health care and to state benefits have been granted before marriage equality. But in the United States, according to Farrow, same-sex marriage represented a patchwork solution to the disarray of the US health care system. “As we look at other countries that have civil unions or marriage for same-sex couples, a precursor to that was universal health coverage,” said Farrow. What activists are demanding—universal health care and federal nondiscrimination protections—stands in contrast to what the mainstream LGBTQ+ rights movement has targeted.
But for Eric Stanley, an associate professor of gender and women’s studies at UC Berkeley, discussions of the Respect for Marriage Act miss the point. It is not a question of who wins but, rather, who loses. “The Biden administration can declare a win, and the conservatives can declare a win for religious liberty. So everyone wins, except for poor people, people of color, and trans people,” said Stanley. LGBTQ+ Americans are significantly more likely to experience periods of extended homelessness and unemployment than the rest of the population. And when having insurance to share or income to write off is a condition to experiencing the benefits of legal marriage, many LGBTQ+ Americans are left behind.
“The same kind of constituents that are always fundamentally excluded from these processes lose,” said Stanley. And for LGBTQ+ organizers, advocates, and writers, this is the true tragedy of the Respect for Marriage Act. Not that it doesn’t go far enough—but that it will always leave people behind.