Editorial: Marriage is good but equality is better

  • by BAR Editorial Board
  • Wednesday December 14, 2022
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President Joe Biden acknowledges the crowd on the South Lawn of the White House shortly before signing the Respect for Marriage Act during a December 13 ceremony. Photo: Screengrab
President Joe Biden acknowledges the crowd on the South Lawn of the White House shortly before signing the Respect for Marriage Act during a December 13 ceremony. Photo: Screengrab

Don't get us wrong. President Joe Biden signing the Respect for Marriage Act Tuesday is a big deal. Especially after Justice Clarence Thomas, in a concurring opinion to the U.S. Supreme Court Dobbs v. Jackson Women's Health Organization decision that overturned the right to abortion allowed in Roe V. Wade, practically begged the court to undo other precedents, including the 2015 Obergefell v. Hodges ruling that legalized same-sex marriage nationwide. The Dobbs decision, issued in June, gave impetus to Congress to finally push the Respect for Marriage Act over the finish line, as Senate Majority Leader Chuck Schumer (D-New York) said at the signing ceremony held on the South Lawn of the White House.

During his remarks, Biden thanked several congressional leaders, including lesbian Senator Tammy Baldwin (D-Wisconsin), who shepherded the bill through that chamber. Biden also thanked Senator Dianne Feinstein (D-California), who first introduced a version of the bill in 2011, as she noted in a statement.

"I'm excited that President Biden signed the Respect for Marriage Act, removing the shameful Defense of Marriage Act from the books and guaranteeing federal protections for all legal marriages," Feinstein stated. Let's remember that history. In 1996, Feinstein was one of a handful of Democratic senators who voted against DOMA, which passed on a whopping 85-14 vote back in the day, including support from 33 Democratic senators. All of the 14 no votes were by Democrats.

The Respect for Marriage Act is important because it will require all states to recognize marriages performed in other states, as it should be. Tragically, that hasn't always been the case in our country's history. Long before same-sex marriage became legal nationwide in 2015, interracial marriages also were once not recognized by some states. It took court action by Richard and Mildred Loving, an interracial couple who were married in Washington, D.C., in 1958 — where it was legal — only to return to their home in Virginia were police burst into their residence and arrested them "for the crime of being married," as Biden said Tuesday. It was nine years later, in 1967, that the U.S. Supreme Court finally ruled that banning interracial marriage was unconstitutional.

We know that it wasn't easy to pass the Respect for Marriage Act in a divided Congress, and we thank those Republicans who voted for it. Yet, much remains to be done in terms of equal rights for LGBTQ people, and that's where the Equality Act comes in. That bill passed the House last year but has languished in the Senate. It will need to be reintroduced next year when the new Congress begins, and with Republicans set to control the House starting in January, forward movement on the Equality Act is next to nil. The legislation would add sexual orientation and gender identity to the Civil Rights Act of 1964, protecting millions more Americans, including those who aren't married.

If you doubt that the Equality Act is needed, look no further than the Supreme Court. On December 5, the justices heard oral arguments in a case, 303 Creative LLC v. Elenis. At issue is whether website designer Lorie Smith's First Amendment right is violated if she cannot refuse to create wedding sites for same-sex couples because such marriages are against her religious beliefs. Not surprisingly, the conservative super-majority on the court indicated it likely will rule in her favor. If the argument put forth by Smith's legal team at Alliance Defending Freedom is accepted, all sorts of public accommodations laws could be gutted. Businesses would be free to discriminate not only on the basis of sexual orientation and gender identity, but race, religion, disability, and so on. A business could simply claim that it "believes" it is being asked to violate its "convictions" in order to refuse service to a customer for any reason, as our national correspondent Lisa Keen wrote in her analysis of the oral arguments.

Congress should definitely reintroduce the Equality Act next year. With such a slim Republican majority in the House, passing it could be possible, as the act had bipartisan support in 2021 when the House approved it. The Senate majority is 50 Democrats plus newly-minted independent Senator Kyrsten Sinema (Arizona), a bisexual woman who used to be a Democrat and likely would vote for it.

We in the LGBTQ community have always known that the Equality Act is important, but now, with the threat of a potentially dreadful Supreme Court decision looming in the 303 Creative case, other minority groups could see their rights eroded as well. It is time that we stand together with other marginalized groups and mobilize. As House Speaker Nancy Pelosi (D-San Francisco) said on Tuesday at the Respect for Marriage Act signing ceremony, "Know your power. None of this would have happened without your mobilization."

The time for action is now. National LGBTQ groups like the Human Rights Campaign and National LGBTQ Task Force, should get on board, as should statewide LGBTQ organizations like Equality California. They should again enlist the support of business and community leaders. And they should work with Republicans who believe in equality for all. There aren't many in these polarized times, but they need to be found and engaged with for their support.

For while the Respect for Marriage Act is a huge win, many LGBTQs will be left behind without protections in the Equality Act.

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