Biden’s same-sex marriage law a reminder that ‘a right won is not a right secured’

The Respect for Marriage Act ‘seems to be an evolution on same-sex marriage support. But I want to caution that we don’t conflate that with LGBTQ support’, according to experts. Sandra Baltazar Martinez shares her interview.

Last week, President Joe Biden signed a landmark bill that now provides federal recognition and protection of interracial and same-sex marriages.

He signed the Respect for Marriage Act on Tuesday, Dec. 13. The law repeals the 1996 Defense of Marriage Act that narrowly defined marriage as the union between a man and a woman, and did not compel states to recognize same-sex marriages performed in other states.

The Respect for Marriage Act does not force states to issue marriage licenses to same-sex couples, but it requires states to recognize marriages as long as the marriage was valid in the state where it was performed. This is significant because the 1996 Defense of Marriage Act had remained effective despite the Supreme Court’s 2013 ruling, United States v. Windsor, that declared it unconstitutional and the 2015 ruling, Obergefell v. Hodges, that guaranteed same-sex couples fundamental rights.

“Folks, racism, antisemitism, homophobia, transphobia — they’re all connected. But the antidote to hate is love,” Biden said in a speech the day he signed the bill. “This law, and the love it defends, strike a blow against hate in all its forms. And that’s why this law matters to every single American, no matter who you are or who you love.”

As the country heard the news of the Respect for Marriage Act, UC Riverside Department of Gender and Sexuality Studies Chair Brandon Andrew Robinson, and UCR LGBT Resource Center Director Nancy Jean Tubbs shared their thoughts.

What does this bill mean for same-sex couples?
Brandon Andrew Robinson: This bill means that same-sex couples will have federal recognition of their marriage even if — or when — SCOTUS overturns same-sex marriage. This bill, though, seems like a canary in the coal mine that the president and U.S. legislators are all but certain that SCOTUS will eventually overturn Obergefell. If Obergefell is overturned, many states will move to ban same-sex marriage, and couples will have to travel to states where it is still legal in order to get married. But they will still, then, be able to receive the federal benefits of the U.S. government’s recognition of marriage.

Nancy Jean Tubbs: In practice, especially for California couples, it does not change the status quo. However, as a bulwark against a possible future Supreme Court decision overturning Obergefell, as Justice Clarence Thomas suggested, this law is definitely important to people living in states that would stop issuing marriage licenses if allowed.

How does this bill impact U.S. states?
Brandon Andrew Robinson: Right now, the bill doesn’t really impact anything or any states. Again, it seems to be a preventative measure of when Obergefell will most likely get overturned. Then, states will get to decide if they will allow same-sex marriage or not. The bill is a reminder (like the overturning of Roe) that a right won is not a right secured. This reminder should challenge us to look for actual ways to achieve freedom and liberation that doesn’t rely on the law (which can be so easily challenged and overturned) and that doesn’t turn to the state for protection, especially when the state is still deeply heterosexist and trans antagonistic.

Nancy Jean Tubbs: Couples can go to other states to get married and then any state that might in the future deny issuing licenses will need to recognize the validity of the marriage enacted elsewhere. Yet this is also a financial burden and a reminder that their home state is actively hostile toward their family relationship. And the “religious freedom” aspects show the trend of allowing unequal treatment of services and resources by individuals.

Is this a true and genuine indication of our country’s evolution for same-sex marriage support?
Brandon Andrew Robinson: It seems to be an evolution on same-sex marriage support. But I want to caution that we don’t conflate that with LGBTQ support. Or that we at least don’t think this support for marriage is some path toward queer and trans liberation. We have seen more anti-trans laws introduced and passed in the past couple years than ever before in the U.S. There seems to be support for being a “good gay” (or what we call homonormative gay), but this acceptance often comes at the expense of those more marginalized in the LGBTQ community, especially trans people of color, who get pushed further to the fringes.

Nancy Jean Tubbs: Symbolically, the passage of this bill demonstrates I believe a real change among most Americans in which respect for marriage equality is greater than hostility towards this recognition. In the past it seemed politically dangerous to support marriage equality. More and more, politicians opposed to marriage equality recognize they are out of step with their constituents. Many people, including myself, believe real change under the law protecting LGBTQ people from discrimination would come from the Senate passing the Equality Act that provides federal protection based on sex, gender identity, and sexual orientation.

How might this law positively impact young LGBTQI+ individuals?
Brandon Andrew Robinson: I don’t think this law will positively impact young LGBTQI+ people. While I was conducting research for my last book — “Coming Out to the Streets” — same-sex marriage was legalized. The LGBTQ youth experiencing homelessness who I worked with said, “who cares; marriage is for doctors and lawyers.” LGBTQ youth are dealing with bullying, parental rejection, mental health challenges, schools banning trans youth from playing on sport teams, some navigating poverty, and some navigating being an undocumented immigrant — this law doesn’t do anything for them. Indeed, this law might tell them it is safe to “come out” (because support for same-sex marriage is growing) when in reality, it actually might not be safe to come out in their particular environment.

Nancy Jean Tubbs: I think while young people are living with more social acceptance and legal protections — depending on their geographic location — not seen by their elders, the RMA does not address the struggles of LGBTQ youth experiencing homelessness or increased rates of suicide or the blatant attempts by some states to strip sources of support for young folks figuring out their sexuality or gender identity. What I hold onto is that youth today are growing up to be our political leaders and activists tomorrow, and they will enact real change for LGBTQ people under the law and in our schools and communities.

This article was first published by UC Riverside LGBT Resource Center.