Action by Congress on the Respect for Marriage Act is a good example of how much things can change in just one decade.
On a bipartisan 61-38 vote, the Senate last week approved the law, which requires a state to recognize a marriage performed in other states between same-sex couples, even if their state has laws against such a union.
Right now, such laws are on the books in many states but held in check by a 2015 ruling by U.S. Supreme Court that essentially made same-sex marriage legal nationwide. But a concurring opinion by Justice Clarence Thomas in the ruling that knocked out Roe v. Wade earlier this year raised the possibility that a conservative court could apply the same legal reasoning to the Obergefell v. Hodges ruling that declared marriage a constitutional right for same-sex couples.
The Respect for Marriage Act is headed to the House, which has approved a slightly different version, so passage seems all but assured some 26 years after it passed a law defining marriage as between a man and a woman.
The act likely would have no impact on Washington, even if the court were to overturn Obergefell. Washington voters legalized same-sex marriage with a law that took effect 10 years ago Tuesday.
That law’s passage wasn’t swift, or assured.
The Legislature had considered the change for several years but wasn’t able to get a bill through both chambers until the 2012 session. When finally passed, it was mainly along partisan lines, with a couple of Republicans voting yes and one Democrat voting no in the state Senate, and one member of each party crossing lines in the state House. Opponents made good on a promise to ask voters to overturn the bill and quickly filed a referendum.
As had been common during hearings and debate over the bill, the ballot measure campaign produced a “parade of horribles” from opponents on the possible consequences of allowing same-sex marriage.
There were admonitions that “God made Adam and Eve not Adam and Steve” – which seemed to ignore a basic Christian tenet that God created all three.
There were claims that churches which did not allow same-sex unions would be forced to perform them in their buildings, something that was explicitly excluded in the text of the bill which dealt solely with civil marriages.
There were suggestions that if the law could be changed to allow two people of the same gender to marry, the Legislature might follow up with one that allowed three or more people to marry. And if one could marry any person they love, would the law later change to allow a person to marry a beloved animal?
Some of these were so far-fetched that they gained minimal traction outside the far fringe. But it was a basic tenet of the bill’s opposition that allowing same-sex marriages would lead to the breakdown of marriage in general.
The law was approved by a margin of more than 200,000 votes. It didn’t pass everywhere – Whitman County was the only one east of the Cascades where it had a majority in favor – but Washington became one of the earliest states to pass such a law and the first where voters approved same-sex marriage.
The law hasn’t been without controversy and generated a long-running court battle over whether a business can refuse to provide services to a same-sex wedding.
But after 10 years, the parade of horribles has not appeared. Catholic priests aren’t being sued for refusing to marry gay couples. Marriage license forms have removed the label “bride” and “groom” and substituted two spaces for “applicant” – but two remains the limit. There’s been no attempt to add other species to the state marriage statutes.
The strength of marriage as an institution in Washington seems no worse 10 years after it became law. It could be arguably better, because more people who want to be married, can be.
The other protection
Another part of the Respect for Marriage Act, which has generated somewhat less attention, is a guarantee that states must recognize marriage between couples of different races.
While that may seem like a “well, duh” provision, interracial marriage was once as controversial as same-sex marriage. It has become far less so after a unanimous Supreme Court in 1967 struck down laws making it illegal.
Although Thomas didn’t suggest that 55-year-old decision, known as Loving v. Virginia, could be overturned, it is based in part on some of the same legal principles as Roe and Obergefell.
Again, such a decision would have no impact in Washington. It removed a law against interracial marriage during territorial days and didn’t reinstate one after statehood despite multiple attempts to do so.
But Washingtonians shouldn’t dislocate a shoulder patting themselves on their collective back for a progressive attitudes.
The lack of such a law doesn’t mean the state welcomed interracial marriages with open arms for the century before the Loving decision, Jason Gillmer, a Gonzaga University law professor and director of the Center for Civil and Human Rights wrote in a 2012 Law Review article. It still used the courts and social conventions to disadvantage people who were in them.