Abhorrent law is dead—but the zombie may return

Today, President Biden signed HR8404, the “Respect for Marriage Act,” repealing the last of remnant of the infamous federal law, the Defense [sic] of Marriage Act (DOMA). The new law also provides certainty for married same-gender and inter-racial married couples. How long that will last is the question now.

There were two reasons this law was urgent. First, the far-right extremist Republicans on the US Supreme Court will probably overturn Obergefell v. Hodges, the 2015 ruling that established the right to same-gender marriage throughout the USA, and they may also overturn Loving v. Virginia, the 1967 ruling that established the right to interracial marriage. If they do, then the new law ensures that all US states will be required to recognise same-gender and interracial marriages performed in other states, even if a state decides to outlaw such marriages being performed in their states.

Another important aspect is that the new law ensures that such marriages will be legal under federal law for federal matters—taxes, inheritance, medical care, immigration, etc. This is another ring of protection for same-gender and interracial marriage.

However—and there’s always a “but” central to any talk of progress for justice and fairness in the USA—all of this may still be undone, and we can be absolutely certain that Republicans will at least make a show of trying. It’s what the party now is and does.

First, the far-right Republican radicals on the Supreme Court could breach the bulwark the new law provides by giving states permission to refuse recognition of marriages legal in other states but not their own. They could do this when they overturn Obergefell, but I doubt that they would do that specifically if they overturn Loving (because of optics, not just because Clarence Thomas is in an interracial marriage). More than likely, they’d seek to do that when overturning Obergefell and then just allow it to apply to interracial couples, too (if they overturn Loving).

To be sure, the Supreme Court can’t give states an exemption from the Full Faith and Credit Clause of the US Constitution without effectively declaring that parts of the Constitution itself are “unconstitutional”. That’d be a nonsense, obviously. Instead, they’d be more likely to declare that Congress overstepped its powers (or something similar) in passing the Respect for Marriage Act.

The biggest, most obvious, easiest and fastest threat could come from Congress: It passed the infamous Defense [sic] of Marriage Act (DOMA) in the first place, of course, and it took a somewhat more sensible Supreme Court to overturn part of it—the part that singled out same-gender couples for animus-based discrimination under federal law; equal protection of the law mattered at the time [the case was United States v. Windsor].

If Republicans have unified control of government after the 2024 elections, all they’d need to do is pass a new version of DOMA, repealing the Respect for Marriage Act. If the radical Republican Supreme Court also overturns Obergefell, as seems likely, then states would be free to ban all recognition of same-gender marriage, and such couples would also lose federal recognition, too.

To reiterate what I said when I last talked about this law, “it’s highly improbable that any US state would try to enact an outright ban interracial marriage”. However, political realities could lurch dramatically to the far-right in the future, and that brings up the most important point of all: Elections have consequences.

If Republicans win unified control of government in 2024, the end of marriage equality for same-gender couples will be inevitable. Being legally allowed to marry in rational, reason-based states will mean little if those marriages aren’t recognised—or of if they’re even criminalised—in other states. And if the federal government also refuses to recognise such marriages, then same-gender married couples in free states could become effective prisoners in their state’s island of freedom.

If Republicans get the power to do so, they absolutely will end marriage equality for same-gender couples. They may also end the nationwide right to interracial marriage, too, though they’d never admit that was a goal until they’re in power, unlike ending marriage for same-gender couples in ever state, something they’ve long and proudly promised to do.

As precedent, look at abortion rights: For years Republicans and their evangelical base promised to overturn Roe v. Wade, and far too few people took their threat seriously—until Republicans succeeded in the Dobbs v. Jackson Women's Health Organization decision. THEN the people who didn’t pay attention to Republicans’ vows suddenly finally understood that Republicans really did intend to make abortion illegal, without exception, in all of the USA, and they now understand that if Republicans get the power to do so, they absolutely will follow through on their promise. Similarly, those same Republicans have always promised to end marriage for same-gender couples, and it’s about damn time people started paying attention. As Maya Angelou is said have put it, "When someone shows you who they are, believe them the first time."

Here’s the hope: Republicans are not yet invincible. In this year’s midterm elections they suffered a catastrophic failure in a year in which they SHOULD have had a massive victory. Despite everything in their favour this year, they failed and Democrats had unprecedented success against all the odds. One of the main reasons for that is that Republicans focus ONLY on radicalised divisiveness and culture wars, and have absolutely no policy proposals whatsoever, nor even the tiniest hint of how they might deal with problems facing Americans. This year, voters massively rejected Republicans’ extremism, and the party has responded by doubling down on that extremism. Republican politicians cannot do any differently: "When someone shows you who they are, believe them the first time."

The enactment of the Respect for Marriage Act protects couples in an interracial and/or same-gender marriage for now. To prevent Republicans from achieving their goal of destroying such marriages, it will be important to elect only Democrats in the 2024 elections. Republican politicians have shown us who they are over and over and over again. It’s about damn time we believe them. I do.