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Marriage Equality Bill Fails to Protect All Families

Towards the end of Pride Month, following the Dobbs decision, thousands of LGBT+ families were suddenly forced into difficult conversations as Justice Thomas, in his concurring opinion, called marriage equality into question once again. 

Modern marriage offers a variety of benefits outside of romance, rings, and an excuse to eat cake: many people marry to protect their rights to access medical insurance; make tough medical choices on each others’ behalf; take care of their children; and divvy assets equitably in the event of a tragedy or mutual separation.  Unfortunately, denying those rights to any family can have heartbreaking results.  

The Respect for Marriage Act (RMFA) promises a quick cure for those who fear losing their right to marry.  Those in favor of the Act, now passed by the House, claim that it will adequately shield same-sex and interracial couples from the fallout of the anticipated reversal of Obergefell, and possibly Loving.  This Act, though, is not enough.

The RFMA, should it become law, will first repeal the misleadingly titled Defense of Marriage Act (DOMA), which defined marriage between “one man and one woman.”  DOMA was made unenforceable by Obergefell.  Second, it will require states to recognize out-of-state marriages, regardless of state law prohibiting the marriage based on “the sex, race, ethnicity, or national origin of those individuals.”

That’s it.  The Act does not clarify any protections for other types of people who have historically experienced marginalization or denial of marriage equality, such as disabled people, polyamorous families, and inter-faith families. Furthermore, the cost barrier of inter-state travel to access marriage licenses will put an undue burden on families that cannot afford to take time away from work, complete paperwork, pay processing fees, and pause their lives for mandatory waiting periods outside of their home state.  Tragically, those most affected by a loss of marriage equality would be among the least likely to be able to afford to travel for marriage.

Additionally, with a potential reversal of marriage equality, coupled with recent calls for restrictions on transgender peoples’ rights, many transgender people fear that states with same-sex marriage bans deny them the right to any in-state marriage.  Before Obergefell, many transgender individuals in heterosexual marriages with cisgender partners were still *denied the benefits of marriage.  This ambiguity in the legal status of transgender peoples’ marriages caused confusion, and ultimately a catch-22 where no marriage option was possible.  A transgender man, for example, would be unable to marry a cisgender man in a state that prohibits same-sex marriage because the marriage would be prohibited on its face.  He would also be unable to marry a cisgender woman because when attempting to access the benefits of marriage, the court could declare that marriage void based on his original birth certificate.  A return to pre-Obergefell treatment of transgender peoples’ marriages would be devestaing to an already struggling community.

In short, the RFMA gives only the illusion of equality, but marriage equality is not respected unless all marriages are equal.
*Much of the language used in this case to discuss transgender people and their bodies is unacceptably derogatory.  Here is a link to a summary of Littleton that does not contain such language.

Written by Cecil Mattson, 2L of Texas A&M School of Law

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