by Rachele Bizzari*
On 13th December 2022, President Joe Biden signed into law the bipartisan Respect for Marriage Act, which provides for the protection of both same-sex and interracial marriages prohibiting states from denying recognition of such unions.
The Act thus formally repeals the Defense of Marriage Act (DOMA), signed into law in 1996 by Bill Clinton, which defined a marriage as a legal union between a man and a woman and allowed states to refuse to recognize same-sex marriages legally celebrated across state lines. Such provision was deemed to be unconstitutional in the 2013 Supreme Court’s case United States v. Windsor under the guarantee of equal protection prescribed by the due process clause of the Fifth Amendment to the Constitution of the United States.
Although the U.S. Supreme Court recognized the right to same-sex marriage in the 2015 landmark case Obergefell v. Hodges, concerns about the tenure of LGBTQ+ people’s rights have arisen in the wake of the recent abortion ruling. Writing for the majority in Dobbs v. Jackson Women’s Health Organization, Justice Alito carefully emphasized that the decision concerned only the constitutional right to abortion. Indeed, nothing that abortion is inherently different from marital intimacy, marriage, and procreation, Alito asserted that «nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion». Nevertheless, Justice Clarence Thomas’ concurring opinion suggested the Supreme Court should reconsider other landmark cases, including rulings that legalized the right to buy and use contraceptives without government restriction, same-sex relationships, and marriage equality. «We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell», wrote Thomas, «because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents».
In such a perspective, the protection granted by the law is rather limited. Indeed, the Respect for Marriage Actdoes not oblige states to issue marriage licences for same-sex and interracial couples. Therefore, should the Supreme Court overturn Obergefell, conservative states will be free to outlaw same-sex marriage, thus forcing same-sex couples to face the expenses of traveling to states that issue licenses and only then obtaining recognition in their home state.
It should be noted that the Act provides federal protection for interracial marriage as well, which the Supreme Court affirmed in the 1967 case Loving v. Virginia. Although Justice Thomas’s opinion made no mention of such case, the ruling struck down laws banning marriage between individuals of different races which the Justices found violated both the due process and the equal protection clauses of the Fourteenth Amendment. In fact, the dissenting opinion in Dobbs points out that «the Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion».
Finally, the Act also provides for an exception for religious non-profit organizations – including churches, mosques, synagogues, and temples – which «shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage». Although such provision allowed for republican support, it plainly grants greater protection for religious objectors than same-sex couples. Balancing LGBTQ+ rights and religious liberty is a sensitive issue. Indeed, the majority opinion in Obergefell had recognized that same-sex marriages’ opponents could continue to advocate against it enjoying First Amendment protection. As of now, the Court has declined to hear free exercise clause claims from people opposing same-sex marriage. On the contrary, Justices agreed to hear a free-speech case from a website designer who refuses to offer her services to same-sex couples, 303 Creative LLC v. Elenis, whose judgment is expected to be released by next summer.
*PhD Candidate, University of Pisa
