Same-sex marriage bill gives boost to LGBTQ people of color, but advocates say there's more work to do

When David Johns heard Congress had passed the Respect for Marriage Act, he felt conflicted. 

On the one hand, he celebrated how the measure enshrining marriage equality in federal law would benefit same-sex and interracial couples. But on the other hand, he recognized it was only a small step forward in the battle for equal rights.

“The Respect for Marriage Act was not a comprehensive bill,” said Johns, executive director the National Black Justice Coalition, a leading Black LGBTQ civil rights organization. “There's so much more that needs to be done with regard to marriage.”

While the now-law officially repeals the Defense of Marriage Act, a 1996 law defining legal marriage for federal purposes as a union between one man and one woman, the measure does not require that all states legalize same-sex or interracial marriages due to constitutional constraints that prevent Congress from interfering with state laws.

State governments under the Respect for Marriage Act must only recognize same-sex and interracial unions as legally valid if those marriages were performed in a state without a constitutional amendment or state statute that expressly prohibits them.

House and Senate Republicans have been critical of the measure since its introduction in July, in part because marriage equality in the U.S. is currently protected by the Supreme Court’s landmark 2016 ruling in Obergefell v. Hodges, which established the constitutional right to marry. 

Democrats in Congress backed the legislation as a necessary precaution. In June, following the fall of Roe v. Wade, Justice Clarence Thomas in a concurring opinion suggested the court should revisit other landmark cases – including Obergefell – on which modern LGBTQ rights have been built.

Chicago Mayor Lori Lightfoot, the city’s first Black female and openly gay mayor, told The Hill in a statement that she applauds the work of President Joe Biden, Vice President Harris and Sen. Tammy Baldwin along with the other supporters of the bill “for fighting for the rights of millions of people across our country to love who they love and to do so proudly through the Respect for Marriage Act.”

“While this act protects the rights of many LGBTQ+ partners like myself and my wife and interracial marriages, we cannot ignore or discount the possibility that if Obergefell vs. Hodges or other important precedents are overturned, same-sex and interracial marriage would still be outlawed in many places across the country,” Lightfoot added.

“While marriages between same-sex couples would have to be honored in all states, there are so many places where this scenario will jeopardize the lives of many people and their loved ones, taking a toll on so many families. We must continue to do everything we can to ensure our fundamental rights are protected, that this scenario is far from our reality and that the Supreme Court takes the much-needed steps to protect our right to love and be who we are."

Bans on same-sex marriage are still on the books in more than 30 states, though none of them are enforceable under protections guaranteed by the court’s Obergefell ruling. If Obergefell were to fall, same-sex couples in those states would have to be married elsewhere to receive the same benefits automatically granted heterosexual couples.

The Respect for Marriage Act also includes religious liberty protections that prevent nonprofit religious organizations from being made to perform or support same-sex marriages and clarifies that the measure does not authorize the federal government to recognize polygamous unions.

Johns said Senate Republicans’ focus on bolstering protections for religious institutions is emblematic of “systems and rules and practices designed to preserve white supremacy and to hoard power amongst those committed to white supremacy.”

“I'm acutely aware of the reality that these bills are being introduced because the privilege that folks like Gov. [Ron] DeSantis (R-Fla.) and [Sen.] Mitch McConnell (R-Ky.) and other exceptionally privileged white men have enjoyed has been threatened,” he said.

Nevada state Sen. Dallas Harris, one of five openly LGBTQ lawmakers in the state legislature, told The Hill that while she’s happy the Respect for Marriage Act was able to become law, she feels uncomfortable that her rights as an LGBTQ person have for decades been legislated in a way the rights of heterosexual people never have.

“I hope most people can relate to this – it feels weird to even have to have your rights codified into law,” she said.

“Part of my experience, and I think of a lot of minorities, is this idea of having your rights constantly litigated by courts, by legislatures, instead of it being this god-given right that everybody else has,” said Harris, who is Black. “And so with this victory comes a little bit of that recognition that, once again, we've got to rely on protections other folks don't have to rely on.”

Like Lightfoot, Harris is in an interracial marriage with children. For Harris, protections for interracial couples are critical to families like theirs.

“The interracial marriage part of this is just as important for me as the gay marriage piece,” she said. “We talk a lot in our community about intersectionality, and both of these are parts of my identity that have to be preserved, unfortunately.”

Johns points out that many Black LGBTQ relationships are interracial, and so the act will help provide a sense of safety for their relationships. But, he added, there is still work to be done to protect and provide space for those in Black, Latinx, indigenous and other same sex, same gender-loving relationships. 

For Johns, in order for same-sex couples to be fully protected, Congress needs to pass the Equality Act to ensure there is no discrimination on the basis sexual orientation, gender identity and gender expression. 

“There are challenges now for people who are in same sex marriages and receiving certain federal benefits that requires some people to become divorced, or otherwise have to choose between their marriage or their benefits,” he pointed out.

It is also legal in many states for landlords to refuse to rent to LGBTQ Americans and for businesses to refuse public goods and services based on one’s sexual orientation. 

The longer it takes Congress to codify these protections, Johns said, the more likely it is the country will continue to see an increase in hate crimes against the LGBTQ community.

“There's so many reasons why the bill should have been passed,” said Johns. “It is a white supremacist-led Senate that relies upon rules that are also reflected in state legislatures where they gerrymander and redraw districts and give unequal power to small rural and isolated communities rather than growing, major metropolitan communities where people are more likely to be diverse.”