The Respect for Marriage Act, which protects same-sex marriages, passed the House of Representatives on Thursday; it’s already passed the Senate, meaning it will soon be headed to the desk of President Joe Biden to be signed into law.
The bill is the result of the Supreme Court’s controversial decision to overturn Roe v. Wade. In his concurring opinion, Justice Clarence Thomas argued that the Court should revisit other decisions, like the landmark 2015 Obergerfell decision that legalized same-sex marriage in America.
That opinion raised alarm bells for people across the country, including Sen. Tammy Baldwin (D-WI), who made history as the first openly lesbian member of the Wisconsin Assembly. Baldwin led a rare bipartisan effort to pass the Respect for Marriage Act, ensuring certain protections for same-sex marriages if the Obergerfell decision is overturned.
Below is a conversation Baldwin had with Today, Explained co-host Sean Rameswaram when the Respect for Marriage Act passed the Senate last week. She says she’s happy it’s getting done, but that there’s still more the government could do to protect same-sex marriage.
Senator Baldwin, can you tell us what exactly is in the Respect for Marriage Act?
The Respect for Marriage Act is actually a pretty humble piece of legislation. We know after the Dobbs decision that there’s a threat out there, there’s an open invitation that’s been issued by Clarence Thomas to relitigate marriage equality.
What it does is it repeals the Defense of Marriage Act, which was passed in 1996 to create a federal definition of marriage as being between a man and a woman, and basically saying that the federal government would not be forced to recognize same-sex marriages should any state approve it.
The second thing it does is [it says], regardless of the law in each state, if you are in a marriage that was legally valid where entered, when entered, that [it] needs to be respected by the federal government and every other state by virtue of the full faith and credit clause of the US Constitution.
For those who might want to be married in the future, sadly, it does not force every state to allow same-sex marriages. But, again, it says if you were to marry in the future, in a state that does recognize it, so long as that marriage is legal where and when entered into, it will be recognized by any other state. It’s a critical piece of legislation moving forward should the Court ever reconsider Obergefell.
You called this a “humble” piece of legislation, which I think means it doesn’t do as much as you maybe wished it did. What did this fall short of doing, the Respect for Marriage Act?
You know, it turns out that it is very, very complicated to codify a decision like Obergefell. I’d love to also give the analogy of the comparison between this and the interracial marriage case back in ’67 called Loving v. Virginia.
When that case was decided, it struck down all the [state laws] banning interracial marriage. At the time that case was decided, Virginia and 15 other states had laws on the books barring interracial marriage. Today, zero states still have those laws on the books, but it took until the year 2000 for the last state to repeal its ban on interracial marriage.
When the Supreme Court overturned Roe v. Wade, many states, including my home state of Wisconsin, had never repealed their criminal abortion bans. Ours dates back to 1849.
Now jettison to the same-sex marriage discussion: Today, 35 states have either statutory or constitutional bans on same-sex marriage. So we have the Obergefell decision, but I don’t know how long it is going to take for all of those states, including my own, to repeal those laws. And, frankly, that’s why we need the insurance of the Respect for Marriage Act. What we were unable to do in this law is repeal or alter state constitutions in the 50 states, right? You can’t do that from the federal level.
So you’re saying you couldn’t comprehensively legalize same-sex marriage.
Exactly. Plus, we regulate marriage and oversee marriage at the state level.
It’s easy to look at the Defense of Marriage Act in 1996 next to the Respect for Marriage Act in 2022, and see progress in this country. At the same time, you only got support from 12 Republicans. What were the rest of them saying when they told you, “I can’t back this bill”?
My Republican colleagues were hanging their hat on different excuses, if you will. I would say it’s probably only a small handful who would say “I oppose same-sex marriage” [or] “I disagree with the Obergefell decision, and therefore, I would not want to vote for the Respect for Marriage Act.”
There were a lot of assertions made falsely, that this somehow impinged religious freedoms. It doesn’t. It’s a status quo. The base bill is status quo. But some of my Republican colleagues felt that they needed clarity, that they needed questions answered. And the way in which we addressed those questions got the support of a dozen Republican colleagues. But, frankly, others just didn’t come on board.
I read that some of your colleagues across the aisle were citing religious freedoms, even though a lot of major religious institutions, including the Church of Jesus Christ of Latter-Day Saints, which in the past has been pretty vocally against gay rights, was supporting this legislation. What gives there?
Communities of faith want to be assured that they won’t be forced to celebrate marriages that aren’t consistent with their faith traditions, and Obergefell never created that pressure.
The Church of Latter-Day Saints was, I think, very sincere in their discussions with proponents of the Respect for Marriage Act, and they were also interested in the clarity of making sure that that we’re talking about marriages between two people, not polygamous relationships.
Once those issues were addressed, yes, indeed, we won the support of the Mormon Church. And some of the entities representing evangelical churches, Orthodox Judaism. It was amazing, the coalition of folks that came together just because we added the clarity that this bill will protect the status quo with regard to religious liberties.
According to the Human Rights Campaign, there have been over 300 anti-LGBTQ bills that have been proposed in state legislatures across the United States in the past few years. It feels like federally we’re moving in one direction and then, in some states, we’re moving in the exact opposite direction.
One of the things I would say is I suspect a huge percentage of those state laws and state bills that are being introduced are particularly targeting the transgender community and particularly trans youth. It’s been so disheartening to see the sort of legislative attacks that our transgender community is facing.
Of course, we have to stand together and fight these pieces of legislation, and I will tell you that rhetoric is also present on Capitol Hill. I think where we are seeing this arc of progress has a lot to do with the fact that in the years since the Obergefell decision, so many Americans — including my colleagues on both sides of the aisle in the United States Senate — now know married same-sex couples.They may have family members. They may have somebody on their staff, somebody who they go to church with, a couple who live down the road.
That has changed hearts and minds, and it has moved people and has gotten us from a place where this vote this week would have been unthinkable a decade ago. But we have a lot further to go with regard to true equality and true equity for the entire LGBTQ community.
And do you think it’s only a matter of time?
I think one of the things that this has proven is that as people see us and know us, that hearts and minds change and that has to continue to happen. Visibility is key to creating change and to creating progress.