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I remember standing on Ellsworth Avenue in 2015, celebrating the ruling in Obergefell v. Hodges that acknowledged that same-sex marriage was legally on par with opposite-sex couples. Marriage equality had arrived.
Or so we hoped.
Pennsylvania still had a so-called Defense of Marriage Act [DOMA] law, defining marriage as only between a man and a woman. It is now invalid, but it has never been repealed. If Obergefell were to be gutted like Roe v. Wade, same-sex marriages could be illegal in Pennsylvania.
Fast forward to late 2022. The Democrat-controlled U.S. House of Representatives has passed the Respect for Marriage Act [RFMA] to codify federal recognition of interracial marriage and same-sex marriage. The U.S. Senate passed a modified version with significant carve-outs for religious objections. This week, the House approved the amended version and sent the bill to the president. President Joe Biden has stated his intent to sign the legislation before the session ends this month.
Still.
Same-sex couples should be careful to avoid an unwarranted sense of security in the protections the RFMA will provide. Those protections are important but they are not a substitute for full marriage equality.
When my wife and I decided on a COVID wedding in February 2021, we invited a friend who had been ordained online to officiate. This is legal in Pennsylvania.
But something wasn’t sitting right with me. It couldn’t be just that easy. And it wasn’t. I discovered that officiants who were ordained online might be a source of concern unless the applicants used a self-uniting marriage license. We did not. We used a traditional license because we had no idea this was a concern. Few people did. The American Civil Liberties Union did, though, and advised us how to proceed.
We were determined not to let any legal vulnerability threaten our wedding day or marriage, so we explained the legal hiccup to someone who was conferred with the power to unite in marriage — then-Mayor Bill Peduto — and asked him to co-officiate. He agreed.
Crisis averted, but it required extra steps simply because we were two women marrying — even after eight years of progress through the courts.
The 2013 Supreme Court decision in United States v. Windsor led to federal recognition of same-sex marriage, with federal benefits for married couples. In June 2015, the Supreme Court ruled that the fundamental right of same-sex couples to marry is on the same terms and conditions as opposite-sex couples, ”with all the accompanying rights and responsibilities.”
The RFMA repeals the discriminatory federal Defense of Marriage Act and replaces it with a policy of equal treatment. RFMA does not do anything right away to change the treatment of married couples under state or federal law.
But if the Supreme Court continues to overrule settled precedents and take rights away from people, RFMA would guarantee equal treatment under federal law for all legally married couples regardless of race or ethnicity, sex or sexual orientation, or national origin. As a woman in a same-sex marriage performed in Pennsylvania, this means that my marriage should be federally recognized no matter what.
The RFMA also tells states that they cannot discriminate against couples based on race or ethnicity, sex or sexual orientation, or national origin when it comes to the full faith and credit they will give to marriages from other states. These full faith and credit protections mean that legally married couples will be able to travel or relocate around the country without worrying that hostile states will refuse to recognize them as married.
RFMA does not, however, address discrimination against couples within their own state. If the Pennsylvania General Assembly fails to rescind the state DOMA, that would be the law in the commonwealth. The federal government cannot address this. This is far from a red-state issue. California also has a similar law in place.
Further, people living in states hostile to same-sex marriage cannot assume that they can go to another state, get married and then come home and have their marriage recognized. If the hostile state adopts a policy of not recognizing any marriages of their own citizens who leave the state in order to evade local restrictions, then the RFMA may not provide any protection.
Pennsylvania has never codified any LGBTQ rights. They have all been won either through the courts or the executive branch.
One area where the risk is significant if poorly understood is adoption. Second parent adoption was recognized by the courts in 2006, but still not legalized in Pennsylvania law. As a result, being married does not automatically convey parental or custodial rights as neatly as it does in opposite-gender marriages particularly for the parent without a genetic connection to their child. The “presumption” of marriage is complicated when you factor in assistive technology for conceptions. Sixteen years after that court case, same-sex couples sometimes must still go through extra steps to secure legal adoption of children because of the lack of legislative action. Some do not and face nightmare scenarios if their parental rights are challenged and/or their marriages end.
That extra step should always include an attorney who is well-versed in LGBTQ family equality law.
There is every reason to celebrate the Respect for Marriage Act. It is progress and it is important. But the reality that it took until 2022 for the federal government to codify interracial marriage? That’s a wake-up call to the realities of second-class citizenship in the United States.
Like Loving, Windsor and Obergefell, the RFMA advances equality. It is what the law does not and cannot do that requires our attention.
Pennsylvania’s General Assembly can repeal the DOMA as well as take other actions to codify rights for LGBTQ families — adoption, nondiscrimination, hate crimes and more. With the Democrats now in control of the state House, there is a possibility that reasonable heads will prevail around the economic and ethical merits of more equality. But we are well-advised to continue taking all precautions and not assuming good faith.
Sue Kerr (www.pghlesbian.com) is a national award-winning LGBTQ activist and blogger. She can be reached at pghlesbian@gmail.com or on Twitter @Pghlesbian24.
