After a year of setbacks for women’s and LGBTQ rights in the US, finally, a piece of good news.
The Democratic leadership has failed to codify the abortion rights no longer protected nationally by Roe v Wade. This week, however, it managed to enshrine protections in law for same-sex and interracial marriage, as president Joe Biden signed into law the Respect for Marriage Act (RFMA). It stipulates that all US states must recognise as valid all marriages – including same-sex and interracial marriages – performed in other states.
The legislation pre-empts the worst possible outcome should the unfairly stacked, right-wing Supreme Court overturn the rights to same-sex and/or interracial marriage in the future. If that comes to pass, a couple that can no longer marry in their home state could travel to another state to get married, and that marriage – and the rights that come with it – would have to be honored in the state where they live. Not that anyone should have to travel to another state to receive a marriage licence or abortion care.
The press’s rush to sing the praises of this “landmark” legislation obscures the fact that the new law is a minimal and defensive measure. The Equality Act, which would offer far more robust non-discrimination measures to LGBTQ Americans nationwide, has, sadly, been languishing in Congress for years.
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The Democratic leadership’s reasons for passing the RFMA are undoubtedly correct. Given the likelihood that the Supreme Court will overturn Obergefell v Hodges, the 2015 precedent that established same-sex marriage rights in all American states, it was crucial to act pre-emptively to mitigate the damage. But it would be nice to see Democrats and elite pundits stating frankly that the law does not go far enough.
Just as this year’s overturning of Roe returns abortion law to individual states – thereby allowing right-wing states to pass draconian abortion bans – the overturning of Obergefell would allow states to again deny marriage rights to same-sex couples.
As for interracial marriage, the same would occur if the 1967 decision in Loving v Virginia was overturned – a more remote possibility, but not entirely out of the question given how extreme the current Supreme Court is.
To be sure, Congress going even this far, with a minority of Republicans joining Democrats in recognising a right to same-sex marriage, is historic. But when we look at the bigger picture, we are still left with the distinct possibility of state-level discrimination against same-sex couples, depending on the Supreme Court’s actions in the coming years.
This discrimination will be no less onerous and offensive simply because it is “less bad” than what could have been. In other words, the RFMA doesn’t go far enough.
Regardless of whether or not the Supreme Court eventually overturns Obergefell (I think it highly likely), the court’s right-wing justices have already indicated their intention to proceed further down the road of allowing anti-LGBTQ Christian bigots to discriminate against queer individuals on “religious freedom” or “freedom of expression” grounds.
Such is the clear upshot of the oral arguments the court heard in the 303 Creative v Colorado case on 7 December.
Colorado is the state where the infamous Masterpiece Cakeshop case (over whether bakers that provide wedding cakes must provide them to same-sex couples) originated. In 303 Creative, a woman who might at some point wish to design wedding websites is preemptively suing to avoid having to provide them to same-sex couples.
As with Masterpiece Cakeshop, the plaintiff in 303 Creative is represented by Alliance Defending Freedom, a right-wing Christian legal advocacy organisation designated an anti-LGBTQ hate group by the Southern Poverty Law Center. The Supreme Court appears poised to decide the case on “freedom of expression” rather than “religious freedom” grounds, but the result will nevertheless be an expansion of the “right” of conservative Christians to discriminate against LGBTQ people.
To effectively oppose this trend going ahead, we are going to need more than defensive, minimalist legislation like the RFMA – legislation that itself contains extensive religious exemptions. We are going to need robust, sustained grassroots organising to put pressure not just on politicians to fight harder for the human rights of marginalised groups, but also on politicians and the press to call right-wing Christians what they are – an unfairly privileged demographic opposed to democracy and human rights that should no longer be coddled by American society.
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