Respect for the Right to Marry

During the first incarnation of my adult life, I trained and worked as a professional theater artist in both the US and in the UK. For more than 15 wonderfully exciting and creative years I worked closely with people who identified as part of the LGBTQ+ community. And, as a cisgender, straight man, I’ve always felt welcomed and completely at home in showbusiness. But I was always saddened that so many in my theater family couldn’t legally marry the people they loved.

That sadness turned to joy when in June of 2015, the Supreme Court (as it was comprised in that era) ruled, in their Obergefell v. Hodges decision , that the fundamental right to marry is guaranteed to same sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment. Finally, I thought, my theater peeps, and same-sex couples everywhere in this country, can marry. And marry they did; freely, joyously, and legally in every state in the union.

But, this year, when this era’s Supreme Court, now dominated by religious conservatives, overturned the original 1973 Roe v. Wade decision (in contravention to overwhelming public sentiment, and thus ending a women’s constitutional right to an abortion) at least one in the majority (Justice Thomas) hinted that the Court should go further and reconsider Obergefell v. Hodges. Hypothetically, if SCOTUS did overturn that decision, according the research by Pew , Republican legislators in 35 states could move to invalidate and ban same-sex marriage, just as so many of them have done with abortion.

Interestingly, in a completely opposite development, acceptance for same-sex marriage reached an all-time high in June of this year when the pollster Gallup reported that 71% - technically, an “overwhelming majority” - of Americans said they supported it. That some members of today’s Supreme Court seemed determined to ignore and disrespect this overwhelming public sentiment and drive this nation backwards on social issues speaks volumes about how out-of-step they are with most Americans (both liberal and conservative).

To many reasonable people – and legal experts – it appears that the Court’s deeply conservative religious minority-majority does not know (or worse, care) that they are now perceived by many as liars (since they claimed in their Senate confirmation hearings that they considered Roe “settled law” and would not overturn it), and fundamentally political. Strikingly, with their actions, their refusal to recuse themselves from key decisions in which they have a true conflict-of-interest, and the recent news that it’s possible that Justice Alito was the source of two very damaging leaks , they appear to be driving Chief Justice Roberts’ Supreme Court into a public perception of illegitimacy. Note that public disapproval of the Court is approaching all-time highs. But, regardless of whether the justices consider or respect public sentiment in rulings (Justice Sotomayor says they don’t), the Court being considered illegitimate by most Americans will undoubtedly generate more distrust and political upheaval in our country. Surely, they know this.

The point is, given the Court’s far right leanings, Justice Thomas’ “supreme warning” about overturning Obergefell v. Hodges generated legitimate fear among people in same-sex marriages and those who are planning a same-sex marriage. What they thought was a constitutional right to marry could very soon no longer be settled law. If Thomas and Co. succeeded, we can all agree that that would have generated significant upheaval.

Then this week, somewhat surprisingly, the Senate – by a 61 to 36, with 12 Republicans joining every Democrat - passed the appropriately named Respect for Marriage Act (RFMA) which essentially repeals the Defense of Marriage Act (DOMA) and will require the U.S. federal government to recognize the validity of same-sex and interracial marriages in the United States. This new law, when passed in the House and signed by President Biden (both are expected very soon), will prohibit states from denying the validity of an out-of-state marriage based on sex, race, or ethnicity. This is a relief for everyone who believes that adults should be permitted to marry those they love, regardless.

But, as Washington Post columnist Jonathon Capehart – who is in a same-sex, mixed-race marriage - pointed out in his column on November 30th , RFMA only goes so far. Yes, if he and his husband moved back to his husband’s home state of North Dakota, the new law means the state must recognize their marriage, which occurred in Washington DC. However, if Obergefell v. Hodges is overturned by SCOTUS, North Dakota (and many other deeply conservative states) could pass a law making same-sex marriage illegal in the state. This will force residents who want to have same-sex weddings to hold them out of state, which could be a significant financial burden to many.

Further, Congress’ newly found legal respect for marriage only goes so far. The RFMA has an exception for religious belief; meaning an individual could use their religious beliefs to justify denial of services – such as catering a same-sex wedding - to members of the LGBTQ+ community and be protected by the law if they did. Some would argue that this “carve out exception” in the law is justifiable respect for religious belief. While others contend that it’s nothing more than giving religious folks a pass to discriminate.

So yes, the Respect for Marriage Act is a positive legal step forward toward greater respect for all Americans, regardless of who they marry. But that doesn’t mean those who don’t respect LGBTQ+ Americans are going to start changing their minds or behaviors anytime soon. I fear it will take a long, long time for our society to come to fully respect the “others” who are all around us. I’m talking about our LGBTQ+ colleagues, friends, and family – all of whom are deserving of respect as human beings.

by Gregg Ward | Executive Director, The Center for Respectful Leadership