For nearly eight years, same-sex couples in West Virginia have been free to marry, but that could all change after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. A bill making its way through Congress has the power to safeguard some of the hard-won rights involved in marriage equality. Here’s why the bill should pass and how you can help.
- The Freedom to Marry is Under Threat
In his concurring dissent in Dobbs, Justice Clarence Thomas opened the door to the court gutting other fundamental civil rights protections, including access to contraception, the freedom to marry and even allowing states to again criminalize consensual same-sex intercourse.
Thousands of West Virginia families could see their rights taken away if a court ruling opened the door for state leaders to again bar same-sex couples from marrying. Everything from hospital visitation to adoption rights could be at risk.
With the right to marry potentially at risk, LGBTQ+ allies in Congress wanted to do something.
- The Respect for Marriage Act is Limited, But Provides Some Protections
According to James Esseks, director of ACLUs LGBTQ & HIV Project:
“The Respect for Marriage Act repeals the 1996 Defense of Marriage Act, which did two things: DOMA barred the federal government from respecting the marriages of same-sex couples who were married under state law, excluding them from federal recognition in over 1,000 contexts, from Social Security survivor benefits to the ability to sponsor a spouse for citizenship to equitable tax treatment. It also said that the Full Faith and Credit Clause of the Constitution doesn’t require states to respect the marriages of same-sex couples performed by other states.
The Supreme Court struck down the federal recognition portion of DOMA in the 2013 United States v. Windsor decision. After Dobbs, people fear that Windsor could be overturned, so the Respect for Marriage Act fully repeals the federal respect portion of DOMA and replaces it with a requirement of respect by the federal government. It also repeals the Full Faith and Credit portion of DOMA, replacing it with a statement that Full Faith and Credit requires inter-state recognition. Those would both be significant advances that would backstop the Supreme Court’s ruling in Windsor and the inter-state recognition portion of its ruling in Obergefell v. Hodges should they be overturned.
However, the Respect for Marriage Act would not require any state to allow same-sex couples to marry.
If the Supreme Court overturns Obergefell v. Hodges, which established that the fundamental right to marry covers same-sex couples, the Respect for Marriage Act would not stop any state from once again refusing to issue marriage licenses to same-sex couples. The federal government would still be required to respect same-sex couples’ already-existing marriages, as would other states in many circumstances. But a state that wanted to get out of the business of issuing marriage licenses to same-sex couples would not violate the Respect for Marriage Act.”
- The Bill Has Strong Bipartisan Support
Last month, the bill passed the House of Representatives with a large bipartisan vote of 267-157, making it the most pro-LGBTQ+ vote in Congressional history.
Forty-seven House Republicans voted yes, even in this supremely partisan and bitterly divided Congress, where conservatives continue to push dangerous attacks on LGBTQ+ people, especially trans people. In contrast, the Equality Act, the LGBTQ+ movement’s highest priority bill in Congress, which would expressly add sexual orientation and gender identity as protected classes to the Civil Rights Act, passed the House a year ago with a vote of just 224-206. Only three Republicans voted in support. The much larger bipartisan support for the Respect for Marriage Act is a hopeful sign of potential progress to come.
But it’s not clear that the bill will actually make it out of the Senate given the 60-vote requirement. That would require 10 Republican senators to join all 50 Democratic senators in agreeing to let the bill get to a vote, and then a majority of senators to vote yes. Despite the significant bipartisan support in the House, progress like that in the Senate is still a very steep hill to climb.
Get Involved
Have you contacted Sen. Shelley Moore Capito’s office yet to tell her to support the Respect for Marriage Act? Reach the senator’s Washington office at 202-224-6472 or the Charleston office at 304-347-5372. Tell her it’s imperative that she support the rights of thousands of West Virginians by supporting the Respect for Marriage Act.