“It’s a landmark bill that protects marriage equality!” “It’s a garbage bill that does nothing!” Social media, as always, weighs in as extremes in response to the recently passed “Respect for Marriage Act.” So which side is right? Well, both.
In light of the US Supreme Court’s recent decision to reverse Roe v. Wade, the public’s attention turned to questioning whether SCOTUS will also overturn their decision in Obergefell (the case essentially establishing marriage equality) next. Given the current makeup of the SCOTUS, we are rightfully concerned that they will take an opportunity in the near future to address marriage equality, and not favorably. In response to those concerns, members of Congress worked to create H.R. 8404, known as “The Respect for Marriage Act,” which has subsequently been both praised and panned.
What It Isn’t
Let’s start with what this new law does not do. To our disappointment, it does not protect marriage equality across the nation. States are not required (by this law) to recognize same-sex marriages, as they were required to do in response to Obergefell. It does not create full protection should the U.S. Supreme Court decide to overturn Obergefell. To be clear: At present, marriage equality is still the law of the land, and will continue to be the law unless SCOTUS overturns Obergefell.
Despite the frustrating limitations of the law, I don’t think it is meaningless. First, in many respects it is a landmark bill. Keep in mind that in 1996, Democrats and Republicans alike overwhelmingly passed the so-called Defense of Marriage Act, which explicitly rejected marriage equality, holding that marriage was between one man and one woman. That law was part of a huge wave of discriminatory laws, constitutional amendments and the like, all designed to batter LGBTQ+ citizens solely for the purposes of political gain. Wisconsin passed an amendment to our state Constitution defining marriage as between one man and one woman. That amendment remains in our Constitution.
In the 26 years since DOMA was passed with bipartisan support, there has been a revolutionary change in how the public views marriage equality. Recent polls suggest that 71% of Americans favor marriage equality. The fact that the Respect for Marriage Act was passed with bipartisan—though not universal—support is actually a big deal, but… In reality, much of the final version of this Act placates the 29% of Americans who do not support marriage equality.
If SCOTUS overturns Obergefell, then this Act comes into play.
What It Is
So given that it does not establish marriage equality, what does it actually do? The Respect for Marriage Act requires the federal government to recognize marriages that are lawful in the state where they were performed. It also requires other states to give “full faith and credit” to valid same-sex marriages conducted in other states. And it establishes exemptions for religious entities so that they are not required to recognize same-sex marriages.
These protections may be important if Obergefell is overturned. Citizens with valid marriages now should be able to count on those marriages being valid going forward. I say “should,” because no doubt overturning Obergefell would result in much more litigation to define how this Act interplays with Constitutional Amendments such as the one passed in Wisconsin. Unless the law is changed in Wisconsin; however, marriage equality for future marriages is at substantial risk. We need to address this risk by pushing our elected officials to once and for all truly stand up for full marriage equality.
A Winning Issue
I do think the tide is turning and have some hope that SCOTUS does not want to create the legal chaos that would ensue by overturning Obergefell. I also have hope that if SCOTUS does in fact overturn Obergefell, we will see more laws passed in favor of marriage equality. In the relatively short time since DOMA was passed, the tide has turned substantially in public opinion, and politicians and courts are taking notice. Despite the fact that marriage equality is not under a current threat, it is crucial to continue to be vigilant and to have our voices heard so that elected officials of all parties start to view marriage equality as a winning issue rather than a risk to re-election.
Michele Perreault is a partner in, and the Managing Partner of, DeWitt LLP’s Madison office. She assists clients with matters related to Family Law, Appellate, Labor & Employment Relations, Litigation, and Trust & Estates. She earned a J.D., magna cum laude, from the University of Wisconsin Law School, an M.A. from UW-Oshkosh and a B.A., magna cum laude, from Lawrence University. She practices state-wide and has represented thousands of clients in circuit and appellate courts, including the Wisconsin Supreme Court.