Is the current gay marriage bill a beacon of brighter days? Of, as more optimistic gays say, things “getting better”?
Or is this bill a terrible compromise rooted in our collective desperation?
We’ll soon find out as, on Tuesday, the Senate voted to pass the “Respect for Marriage Act.” The legislation now goes back to the Democratic-controlled House, where it is expected to pass, and then placed on President Joe Biden’s desk for his signature.
At best, it is a preemptive Band-Aid should the Supreme Court try to overturn Obergefell v. Hodges.
At face value, this act seems like a step forward by codifying federal same-sex and interracial marriage rights. At best, it is a preemptive Band-Aid should the Supreme Court try to overturn Obergefell v. Hodges, which cited the Fourteenth Amendment to legalize same-sex marriage. If Obergefell falls, bans in 35 states would go back into effect. But already married same-sex couples would not lose their benefits, and same-sex couples could continue to get married in states where it remained legal, traveling to another state if necessary.
But in no way does this act federally legalize “marriage equality” across the United States. It is mostly insurance for existing marriages. As Cornell University Law School professor Michael C. Dorf explained, “Same-sex couples residing in states that do not of their own accord recognize the legality of their marriages would have to go to the trouble and expense of traveling to a state that does in order to receive full recognition in their home state.”
Even John Cornyn, the conservative Republican senator from Texas, agreed that the act “does not move the needle on same-sex marriage.”
Dig a bit deeper, and what this act really represents is the inflexibility of our nation’s institutions and the national entrenchment — despite constitutional assurances to the contrary — of religion.
At its worst, the legislation is a Trojan horse ushering in protections that allow religious institutions — from churches to mosques, religious nonprofits to religious schools — the right to refuse services, facilities and goods for any marriage ceremony or celebration. Effectively, this act codifies discrimination.
The protections to religious liberty were late additions to the bill, in order to secure the support of Senate Republicans like Utah’s Mitt Romney. Romney released a statement in mid-November applauding the legislation for providing “important protections for religious liberty — measures which are particularly important to protect the religious freedoms of our faith-based institutions.”
At its worst, the legislation is a Trojan horse ushering in protections that allow religious institutions the right to refuse services, facilities and goods for any marriage ceremony or celebration.
This kind of support obviously comes with big tradeoffs. Indeed, what is particularly insidious about this act — from its language to how elected officials are touting it to the celebratory air surrounding it on social media — is the way it capitalizes upon the collective desperation of racially marginalized and LGBT people. That we are in such need of basic security and protections — a roof over our heads, affordable health care — we have taken to seeking assurance in the very institutions that legally codify and condone discrimination against us. That our basic civil rights, including the recognition of our human dignity and our very human desire for societal respect remain tethered to antiquated, patriarchal institutions. That we are somehow deemed more worthy of public services and tax breaks if we join this institution.
We are operating from such a profound place of fear and oppression that we gleefully gobble up this bread crumb and feign satedness.
More and more states are legislating against our bodily autonomy and existence — surveilling our movement, criminalizing our bodies, erasing us from textbooks. But with less than a month remaining in this congressional session — the final month of Democratic Party control of the House of Representatives — this is what liberal lawmakers are focused on? A rhetorical bone to thank gays and Black people for voting for them? A nod to the midterms’ “Rainbow Wave” — the most LGBT people elected to office?
The “Respect for Marriage Act” is a fear-based reaction to the Supreme Court’s Dobbs decision, in which Justice Samuel Alito, on behalf of the majority, declared over and over again that because abortion is mentioned nowhere in the Constitution that not only is it not legal but, according to the very selective set of sources he pulled from, it is criminal. The fear is that this conservative-majority court will go for marriage next, as part of a broader interrogation of rights afforded by the due process and equal protection clauses.
But, right now, the Supreme Court is hearing two cases on racial gerrymandering and two cases challenging affirmative action, more specifically, challenging the right of public and private higher education institutions to consider race as one factor in admissions. Meanwhile, epidemics of gun violence and violence against trans, nonbinary, and gender nonconforming people are destroying our lives. Migrant and refugee people seeking sanctuary are being imprisoned, abused and exploited by politicians as political pawns.
What the priorities of Congress and, seemingly, our collective interest indicate is the profound limitations of not simply our institutions but what I call the “equality mindset”— the generations of social conditioning that have hemmed the expanse of our political and social imaginations to the desires of the white supremacist patriarchy such that we seek equality within the very institutions designed to oppress us.
Of course, the irony in this situation is that federal marriage equality isn’t even guaranteed under the Respect for Marriage Act. But the mindset is so pervasive, the desire for equality on patriarchy’s terms so deeply entrenched within us, that we seek equal rights and protections — here, that your gay marriage will be “recognized” in a state that bans gay marriage — that we fail to question the capacity of these measures. We do not seek something else, instead invoking the “chess game” logic of political strategy, which is just shorthand for acquiescence with the inefficacy of or government.
As we’ve seen time and again, laws can be made and unmade, rights can be given and taken, yet it is only in their practice that they can be experienced. The constitutional right to vote, for example, exists in name but means very little when a gun-toting extremists are legally allowed to patrol a polling station. Recognition by and inclusion into institutions is not the equivalent of respecting the human dignity of your neighbor.