Washington Blade: Senate’s Respect for Marriage Act designed to withstand legal challenge: Padilla
By Christopher Kane
The Senate’s version of the Respect for Marriage Act (RFMA) was written to “provide the strongest protections possible while being very thoughtful to ensure the best legal defense” in the face of a possible litigated challenge, Sen. Alex Padilla (D-Ca.) said.
“Might there be legal challenges to it? I hope not. But in the case that there are, I believe it will be upheld,” Padilla told the Washington Blade by phone on Wednesday, ahead of the Senate’s expected procedural vote on the legislation.
It is the prerogative of any senator to propose additional amendments to the RFMA, as with any legislation, but the appetite among the bipartisan coalition of lawmakers backing the bill is for none to be added at this stage, said Padilla, who is among its co-sponsor.
The California senator credited Sen. Tammy Baldwin (D-Wi), the Democratic lead on negotiations over the bill, with securing “the Republican support necessary to overcome the filibuster.”
“I’m grateful that my Republican colleagues were willing to see the light and act accordingly here,” Padilla said.
As written, the RFMA “makes clear that the federal government will not discriminate in marriage on the basis of sex or race [while requiring that] states must acknowledge marriages happening in other states,” said Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign, America’s largest LGBTQ organization.
The legislation “is really important as insurance for what’s happening next,” she said during a media briefing jointly hosted by HRC and GLBTQ Legal Advocates and Defenders (GLAD). “We don’t know what lays in front of us,” Oakley said.
Writing a concurring opinion earlier this year in the case of Dobbs v. Jackson Women’s Health Organization, Supreme Court Justice Clarence Thomas signaled his interest in revisiting the high court’s ruling establishing constitutional protections for same-sex marriage.
“Part of the urgency” to pass the RFMA during this legislative session “has been the fallout from the Dobbs decision at the Supreme Court, where extremists undid 50 years of Roe v. Wade protections and jeopardized other rights,” Padilla said.
“With a target on [same-sex] marriage, we appreciate that Congress is stepping up to do something,” GLAD’s Senior Director of Civil Rights and Legal Strategies Mary Bonauto said during the media briefing this morning.
“This bill is careful with how to thread the needle,” she said, “protecting state and federal marriages without addressing a host of other issues.”
“There are limitations to the bill,” Oakley conceded. “But what it is doing is really important – symbolically, legally, and practically,” she said, noting that there are more than 1,100 federal rights and benefits conferred through marriage that will be protected for same-sex couples through passage of the RFMA.
“Not to get ahead of ourselves,” Padilla said, but the RFMA will hopefully pave the way toward eventual passage of the Equality Act, which would expand civil rights protections to prevent discrimination against LGBTQ Americans in employment, housing, credit, jury service, and federally funded programs.
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