When will same-sex marriage be codified? (And what does that even mean?)

Same-sex marriage is legal today but it isn’t guaranteed:

 

A look at the Respect for Marriage Act, the history of marriage laws in the U.S. and what’s at stake when we talk about the push to codify marriage equality.

 

 

Same-sex marriage is legal in the U.S., but its future isn’t guaranteed.

 

The recent reversal of Roe v Wade and the upcoming Senate vote on the Respect for Marriage Act have a lot of Americans wondering if marriage equality will once again be left up to the states – or if federal lawmakers will finally codify these rights for all adults. 

 

To understand what’s at stake, and why codifying marriage rights matters so much, we need to take a quick look at a few important definitions and the history of same-sex marriage laws. 

 

 

 

• When was same-sex marriage legalized in the U.S.? 

 

Same-sex marriages became legal in all 50 states on June 26th, 2015, with the Supreme Court’s ruling in favor of marriage equality in Obergefell v Hodges. 

 

Related: Celebrating the Anniversary of Obergefell v. Hodges

 

Although same-sex marriage was already legal in several states by that time, many others had bans in place – either in their statutes or written into their state constitutions.

 

This meant that same-sex couples living in Texas had to travel to nearby New Mexico or Iowa to be married. When they returned home, their rights as a couple or parents might be limited, and they’d almost certainly face frequent discrimination. 

 

Thankfully, the Obergefell v Hodges ruling invalidated all state bans, making them instantly unenforceable. Same-sex couples were finally able* to marry in every state. 

 

* While same-sex couples could marry legally, finding a wedding officiant willing to marry them was still a challenge in many places. 

 

That’s where online ordination comes in: Online ordination through AMM is free and accessible, and ensures that all people have the opportunity to solemnize marriages and choose who officiates their wedding. Online ordination through AMM protects the right of all adults, including LGBTQ+ couples, to be married by someone who respects and loves them.

 

• Get ordained online and help protect marriage equality

 

 

 

Photo by Wallace Araujo

 

 

• What happened to all those state bans on same-sex marriage?

 

In the years following the Obergefell ruling, several states have introduced new legislation to repeal defunct bans from their law books. Nevada was the first to successfully remove a ban from its state’s constitution in 2020, joined by New Jersey in 2022. Similar legislation was introduced in Florida, Missouri, Virginia and elsewhere, but unfortunately failed to pass. 

 

Currently, same-sex marriage bans are still on the books in over a dozen states. Laws that explicitly define marriage as a union between one man and one woman are common as a result of the Defense of Marriage Act (DOMA), and discriminatory gendered language appears in hundreds of statutes. 

 

These outdated laws are unenforceable for now – thanks to Obergefell. But there are no codified protections for same-sex marriage at the federal level; these protections depend on the Supreme Court’s continuing support for Obergefell v Hodges and their reading of the Fourteenth Amendment. 

 

Related: What overturning Roe v Wade could mean for Marriage Equality

 

If Obergefell is overturned, state bans could once again be enforced. One look at how quickly state abortion bans went into place following the reversal of Roe is all that’s needed to envision how this might happen, even in a country that widely supports marriage equality. 

 

 

 

 

• What does it mean to ‘codify’ same-sex marriage? 

 

When something is ‘codified,’ it’s written into law in an explicit and formal way. To codify a right means to protect it from inconsistent interpretation by enacting a law that defines it in clear terms.

 

In the context of marriage law, this means passing federal laws that establish equal marriage rights for all adults, regardless of their sex, gender, or race. 

 

If laws protecting same-sex marriage are passed at the federal level, the enforcement of these rights doesn’t depend on the Supreme Court’s interpretation of Obergefell v Hodges, and any state bans that remain on the books won’t be restored if Obergefell is overturned. 

 

 

 

Photo by Darya Sannikova

 

 

 

• So what’s next? The Respect for Marriage Act

 

The Respect for Marriage Act would codify marriage protections for same-sex and interracial couples at the federal level and repeal the 1996 Defense of Marriage Act. 

 

The Respect for Marriage Act was passed by the U.S. House in July of 2022 (267 Y - 157 N), and was scheduled for a vote in the Senate in October, but has been delayed until after the November midterm elections. 

 

If passed, the Act would : repeal the Defense of Marriage Act (DOMA); repeal and replace provisions that define, for purposes of federal law, marriage as between a man and a woman with provisions that recognize any marriage that is valid under state law; repeal and replace provisions that don’t require states to recognize same-sex or interracial marriages from other states (or any out-of-state marriages on the basis of sex, race, ethnicity, or national origin); and allow the Department of Justice to bring a civil action and establishes a private right of action for violations.

 

You can read the full text of the bill here (US Congress House Bill 8404 & US Senate Bill 4556). 

 

Loving v. Virginia Codification Act of 2022

 

It’s important to mention that a similar bill to codify protections for interracial couples (Loving v. Virginia Codification Act of 2022, US Congress House Bill 8396) was also introduced this year, and was referred to the House Committee on the Judiciary in July. 

 

Like Obergefell,  two cases that established protections for interracial couples – Loving v Virginia and Perez v Sharp – rest on the Supreme Court’s reading of the Fourteenth Amendment. We’ll keep a close watch on this bill and update our ministers with any progress. 

 

 

 

• In the meantime…

 

In the meantime, we encourage all AMM Ministers to continue serving your community, marrying couples with love and respect, exploring what brings you closer to yourself and to others, and actively working toward a future that aligns with your values – whatever they may be. 

 

 

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Minister Jan Shannon delivered an LGBTQ+ affirming prayer and message of love and unity at the Coeur d'Alene Pride in the Park event. Read more about it here. 

 

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