The Respect for Marriage Act Sets a Dangerous Precedent for Civil Rights
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Author: Katherine Franke
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The Nation

State legislatures across the country put a target on the backs of LGBTQ people this year. Lawmakers introduced nearly 200 bills that would criminalize the health care LGBTQ people need and deserve, erase our history and culture, and render our very existence unspeakable. So, it came as somewhat of a surprise that the US Senate, and now the US House, passed a bill to secure marriage rights for same-sex couples. The Respect for Marriage Act requires the federal government to recognize the marriages of same-sex couples, and mandates that all states honor valid marriages from other states—specifically barring states from refusing to validate out-of-state marriages if the reason for doing so is the couple’s sex, race, ethnicity, or national origin. The bill now heads to President Biden for his signature.

The bill has an unusual provenance. When the Supreme Court overruled Roe v. Wade last June in Dobbs v. Whole Women’s Health, Justice Clarence Thomas wrote a concurrence that made explicit what was implied in Justice Alito’s majority opinion: By knocking the constitutional legs out from under the right to abortion, the court left nothing for the rights to contraception and same-sex marriage to stand on. The next day, the switchboard in Congress lit up with calls from constituents in same-sex marriages, demanding that their elected officials do something to protect their marriages and families before the Supreme Court could reverse Obergefell v. Hodges, the 2015 same-sex marriage decision. Congressional staffers got to work and drafted the Respect for Marriage Act. Thus, the Respect for Marriage Act was not something that originated with the LGBTQ rights groups, like the Equality Act now pending in the Senate that would add protections against “sexual orientation” and “gender identity” discrimination to a wide range of federal laws that already prohibit race, sex, and other forms of discrimination.

The Senate passed the bill with support from 12 Republicans by including in the bill a robust exemption for religious organizations. This strategy, referred to by insiders as “the Utah compromise,” reflects a strategy taken in Utah to pass gay rights legislation by including broad carve-outs for religious objectors. Better half a loaf than no loaf at all, so the thinking goes. But alarm bells should set off when a strategy to protect civil rights in an outlier state—a state some have described as a theocracy—becomes the new normal for the whole country.

What’s worrisome about how the Respect for Marriage Act accommodates religion is not that the exemption will undermine the marriage rights of same-sex couples—in fact, it will apply in very few cases, because the bill only requires states and the federal government to recognize the marriages of same-sex, interracial, or interethnic couples, and government entities can’t assert religious liberty rights. Rather, what is troublesome about this broad religious exemption is the precedent it sets, not only for protections for LGBTQ people but possibly for all legislation.

Evangelical, right-wing legal advocates have been pushing hard for religious exemptions to everything, including Covid regulations, laws securing LGBTQ and sex equality, workers’ rights to unionize and a minimum wage, laws criminalizing domestic violence or child abuse, and the law of divorce. Including an explicit religious exemption in a civil rights law—one that is broader than what the law might otherwise already allow—risks inviting the camel’s nose under the tent. Evangelical conservatives will surely use the Respect for Marriage Act as a precedent for including explicit and broad religious exemptions in almost any conceivable law. A good example is the lobbying effort of the Christian right around the Pregnant Workers Fairness Act, a bill now pending in the Senate that would require employers to reasonably accommodate pregnant employees, demanding that a religious exemption be included in the law. “The bill we are discussing today deals an unnecessary blow to religious organizations, potentially forcing them to make hiring decisions that conflict with their faith,” recently argued Republican Representative Virginia Foxx. Well, the same could be said for all laws prohibiting race or sex discrimination, yet we have had a national consensus that an employer may not raise faith-based objections to compliance with workplace equality laws. How solid that consensus remains is an open, and worrisome, question.

Beyond the religious exemption in the Respect for Marriage Act, there is an even stronger explanation for why 12 Republicans in the Senate and 39 Republicans in the House (down from 47 in July) voted for the bill. The Republican Party, or at least the less-extreme sector of the party, is stinging from the midterm elections. in which the hateful right wing loudly broadcast homo- and transphobic messages to its base. Even though this ugly appeal got the base to show up on Election Day, it wasn’t enough, as the majority of those MAGA haters lost. Now, Republicans want to distance themselves and their version of the GOP from the MAGA right. What better way to do that than to launder the party through support for same-sex marriage? There’s a term for this: pinkwashing. I understand this as the peril of “dating the state”: when the state, or the political parties that make up the state, take up your cause as its own, “victory” becomes something that is inescapably morally compromised.

How is this true in the case of the Respect for Marriage Act? Certainly, exempting religious objectors normalizes the principle that religious liberty is more important than equality, thus solidifying the tiering of constitutional rights that I previously wrote about for The Nation. But of even greater concern is the overall conservative framing of the bill. It starts: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Really? For a community that has a long history of queering the idea of family, kinship, love, and care? This language harkens back to Justice Anthony Kennedy’s bromide in the Obergefell case: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Senator Chuck Schumer couldn’t help himself either, tearfully stepping up to a microphone immediately after the Senate voted on the bill to declare that prophylactically shoring up the marriages of same-sex couples was “personal to me…. my daughter and her wife will be welcoming their first child…in a few months…. That child will now grow up in a world that will honor their mothers’ marriage and give it the dignity it deserves.” Fifty years after the Stonewall riot, marriage has become the normalizing container for LGBTQ equality, freedom, dignity, and security.

Winning the right for same-sex couples to wed has come at a very high price: signing up for a vision of the family, commitment, love, and care that domesticates our needs and desires into the traditional nuclear family, a version of family and responsibility that is anathema to the radical queer politics that sustained us before, throughout, and after the AIDS epidemic. Not coincidentally, it furthers a neoliberal vision of a state that bears no responsibility for supporting the welfare of its citizens.

While it is refreshing to see a bipartisan supermajority of senators act in a way that isn’t explicitly and toxically homo- or transphobic, it is worth noting that the Respect for Marriage Act is the least queer gay rights victory in history. In this respect, it marks the zenith in the evolution of the LGBTQ rights movement from a radical fight for sexual liberation into an unadventurous campaign to protect the right to marry, leaving out in the cold the rest of us who are unmarried, single parents, in queer families, or otherwise living outside the nuclear family as a political choice or legal necessity.

Katherine Franke is the James L. Dohr Professor of Law at Columbia University and the founder and faculty director of the Law, Rights, and Religion Project.

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