A Bare Minimum: The Respect for Marriage Act
The act will overcome any future Supreme Court rulings that take away our political and civil rights
Governments have long felt the need to define what a “marriage” looks like, using legislation to enforce this very image. Until relatively recently, this image has been of a white man and white woman.
The legal battles
In the U.S., interracial marriage only became fully legal in 1967 as a result of the Loving v. Virginia Supreme Court ruling, which ultimately declared bans on interracial marriages to be unconstitutional. Prior to the ruling, as many as 16 states — largely in the South — had laws making interracial marriages illegal. At the same time, Australia was making its own amendments allowing those in the indigenous community, then considered wards of the state, to appeal decisions made by the director of welfare with regards to whom they married. Unsurprisingly, South Africa lagged behind, only repealing their 1949 Prohibition of Mixed Marriages Act in 1985.
It is only within the last two decades that legislators seem to be loosening their grip with regards to the role of gender and sexuality in marriage. While Denmark became the first country in the world to legalise same-sex partnerships in 1989, the first country to legalise same-sex marriage, namely the Netherlands, only came to the party in 2000. In the Supreme Court ruling Obergefell v. Hodges, the U.S. ruled that the 14th Amendment requires all states to issue marriage licenses for same-sex couples, as well as recognise all legal marriages … in 2015.
And so, in the past 60 years, many couples have faced long legal battles just to walk down the aisle. Given this long road, however, it seems not only counterintuitive, but also unjust, for there to be any possibility for legislative backtracking. In June 2022, Roe v. Wade, the U.S. Supreme Court ruling federally legalising abortion, was overturned. A question then emerges, are same-sex and interracial marriages next on the chopping block? These rights, much like the right to abortion, are also protected via Supreme Court rulings.
What are legislators doing to protect same-sex and interracial couples?
It is not just journalists and activists that have shown a concern for the legal protections that same-sex and interracial couples currently enjoy in the U.S. Legislators are also beginning to wake up to the vulnerabilities associated with relying on Supreme Court rulings to enshrine and protect civil and political rights. Much like abortion became a state issue overnight, so could same-sex and interracial marriages.
After all, according to the 1996 Defense of Marriage Act (DOMA), “marriage” is defined under federal law to be between a man and a woman. The 16 state bans on interracial marriage mentioned above only became null and void as a result of the Loving v. Virginia ruling. The right to marry whom you choose despite race and sex are not enshrined, as it stands, in U.S. federal law.
And so, enter the proposed Respect for Marriage Act. Having passed the House in July 2022 and overcome a possible filibuster in November 2022, the bill must now overcome the minor hurdles of a merits vote and a second vote in the House of Representatives. This would repeal the 1996 DOMA and require states to recognise same-sex and interracial marriages performed in other states. The good news? The bill is expected to pass. The bad news? This is not good enough. States would maintain the right to ban such marriages under their jurisdiction.
The bare minimum
After decades of fighting, legislation will continue to determine what “marriage” looks like. Barring concerns for consent and welfare, such intervention should be minimised. The U.S. government has adopted a policy of secularism, but continues to allow personal and religious views to inform policy. More than that, it has allowed these views to police American citizens’ decisions around whom to spend the rest of their lives with. This seems odd. Governmental power to dictate morality seems like a relic from the past.
Now, I realise that I am entering into a debate around government mandates, the complex relationship between secularism and public opinion, and even around state vs. federal law. That being said, what I would like to focus on here, is that decades of activism can be so easily undone. Political and civil rights should be enshrined in federal law. We are passed the point in history where civil rights are debatable and subject to a state’s discretion. Race, sex, gender, and sexuality are not grounds on which to differentiate who civil and political rights apply to. They apply to all citizens. If a country cannot agree on this simple fact, then there is a lot more work to be done. Activism cannot slow done … not yet.
