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For the first two years of the Biden presidency, Democrats controlled both Congress and the White House. After Republicans captured the House in the 2022 midterm elections, the Democrat-led Congress quickly passed the Respect for Marriage Act (the “RFMA”) as one of its final legislative actions. Thirty-nine House Republicans and every House Democrat voted for the bill, and twelve Senate Republicans joined every voting Senate Democrat in support. The RMFA does several important things: (1) It requires states to recognize same-sex marriages validly entered elsewhere; (2) it defines “marriage” for federal purposes as between two individuals regardless of sex; and (3) it safeguards individual religious liberty by exempting nonprofit religious organizations from any construction of the law that would otherwise require goods or services regarding same-sex marriage.
The RFMA is an incredible testament to how quickly national sentiment has shifted in favor of same-sex marriage and gay rights more generally. Rather than an unbridled victory, however, the RFMA is in many ways a warning sign for the unstable and increasingly perilous future of LGBTQ rights in the United States. To understand why requires an analysis of the shifting constitutional reality that necessitated congressional action.
In 2013, the Court in U.S. v. Windsor struck down controversial provisions of the so-called Defense of Marriage Act that had statutorily defined “marriage” for federal purposes as “between one man and one woman.” The Court reasoned that these provisions were tainted by animus against gay, lesbians and bisexual individuals and therefore violated principles of equal protection. In 2015, the Supreme Court in Obergefell v. Hodges struck down all remaining same-sex marriage bans in the United States, reasoning that same-sex marriages comport with the central components of what has always made entering a “marriage” a fundamental individual right. These two monumental decisions suggested that gays, lesbians, and bisexuals had finally secured long-sought constitutional protection from exclusionary and biased governmental decision-making. That promise of constitutional inclusion may have been short-lived.
In February 2016, Justice Scalia died while still serving on the bench. Scalia had been one of the Court’s most conservative members and a self-avowed originalist, and he authored scathing dissents in both Windsor and Obergefell. President Obama nominated moderate Merrick Garland to fill the newly vacant seat, but Senate Republicans declined to even hold a hearing. After Donald Trump won the presidency in 2016, he promptly nominated Neil Gorsuch—another self-avowed originalist—to fill Scalia’s seat, whom the Senate confirmed in early 2017. Although the Republican blockade of Merrick Garland was a deeply partisan and unprecedented maneuver to maintain power, swapping one conservative jurist with another kept the Court’s ideological balance intact and suggested little about a possible retreat from the Court’s recent LGBT friendly rulings.
The Court’s ideological makeup shifted rightward in 2018 with the retirement of Justice Kennedy, who was the Court’s “swing vote” and Windsor and Obergefell author. Kennedy’s retirement allowed for the controversial confirmation of Brett Kavanaugh. While he characterizes Kennedy as a mentor, Kavanaugh’s frequent praise of more conservative Justices like Scalia suggests a judicial philosophy more right-wing than that of his predecessor. The Court’s most dramatic ideological upheaval came at the end of 2020 with the death of Justice Ruth Bader Ginsburg. Mere weeks before the final ballots were cast in the presidential election, the Senate confirmed Trump’s third nominee to the Court: Amy Coney Barrett. While Ginsburg had been one of the Court’s most reliable liberal votes, Barrett, who clerked for Justice Scalia, professes a deeply conservative originalist view of constitutional interpretation.
Today’s Supreme Court bears little resemblance to the one that decided Windsor and Obergefell, and scholars have empirically characterised it as the most conservative Court since the 1930s. Its radical evolution became publicly evident last summer in the blockbuster Dobbs decision overruling Roe v. Wade and ending nearly fifty years of constitutional protection for the right to choose to have an abortion. Embedded in the decision is the roadmap for overturning Obergefell and many of the other privacy rights decision upon which it drew. While the majority decision took pains to assure the public that Dobbs leaves those precedents undisturbed for the time being, Justice Thomas’s concurrence was explicit in its call to revisit those decisions and end constitutional protection for same-sex marriage.
The Court’s rightward shift is also apparent in its approach to religious liberty cases, ruling with increasing frequency since Justice Barrett’s confirmation in favor of Christian plaintiffs who seek exemptions from LGBT-inclusive anti-discrimination laws as well as public health measures designed to combat COVID. To secure necessary Republican votes, the RFMA nods to those religious liberty precedents by allowing for religious exemptions to same-sex marriage related services. Moreover, the Court this term will decide whether the Constitution requires such exemptions.
While the RFMA is indeed a victory, its reach and scope are limited. States remain free to treat same-sex relationships differently in a variety of contexts, such as in antidiscrimination protections and child custody and welfare proceedings. That differential treatment may soon be a constitutional requirement. We should indeed celebrate the momentous federal legislation embodied by the RFMA, but we should also acknowledge its symbolic warning about the uncertain future of LGBT rights.
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