My opinion: Impact of Respect for Marriage Act still lacks court backing

Before Obergefell, each state treated same-sex marriage as it saw fit, with some states outright outlawing it while others embraced it openly. In the post-Obergefell United States, same-sex couples have been rightfully afforded all the same benefits as heterosexual couples in their quest for marriage since 2015. As it stands, that is the law of the land. However, as the recent judicial climate surrounding abortion rights has shown, SCOTUS can overturn previous rulings, and citizens can lose their rights in what seems like an instant.

As a precautionary measure to prevent the near-total revocation of same-sex marital rights should SCOTUS overturn Obergefell, Congress enacted the RFMA. That being said, the RFMA will not come into play unless SCOTUS overturns Obergefell. While the RFMA does not codify the legality of same-sex marriage (a step backward), it does codify the requirement that all states recognize same-sex marriages that have been legally performed (a step forward). Further, these couples have the right to receive state and federal benefits in any state.

In practice, the RFMA would allow states to outlaw same-sex marriage, meaning a state could lawfully refuse to provide a marriage certificate for same-sex marriages. However, it would require those same states to recognize same-sex marriages that were legally performed as valid and ensure that same-sex spouses receive all state and federal benefits as any other married couple would. The RFMA does carry out an exception for qualifying religious organizations not having to provide marital services to same-sex couples.

If the RFMA is triggered, the implications for same-sex couples vary heavily, depending on where they live. The national climate of marriage will change drastically, as any state that had outlawed same-sex marriage pre-Obergefell would revert to that same law. However, they would still be required to recognize such marriages and provide state and federal benefits. The effect is that most states would not provide marriage certificates for same-sex marriages.

In Oregon, it is unclear what would happen if Obergefell is overturned. In 2014, in Rummell and West v. Kitzhaber, the U.S. District Court for the District of Oregon ruled that Oregon’s same-sex marriage ban was unconstitutional. However, the grounds for invalidating the ban differed from the reasoning in Obergefell. This means that an overturn of Obergefell would not automatically invalidate Rummell and the right to same-sex marriage in Oregon. However, it does leave it vulnerable to revisitation and eventual overturn.

National rhetoric surrounding same-sex marriage already has been and will continue to be affected by the RFMA. While it puts certain protections in place, it is also a congressional acknowledgment that a ban on same-sex marriage is constitutional. This acknowledgment will affect how society perceives same-sex couples and will improperly invalidate their relationships.

In a sense, the RFMA creates a whiplash effect for same-sex couples. First, states decided about same-sex marriage. Then Obergefell was celebrated as a federal victory, ensuring marriage equality across the country. Confusingly, an overturn of Obergefell could send the decision to allow same-sex marriage back to the state level. The rights of same-sex couples to marry would again fall to individual states, an outcome that would be a step backward rather than forward.