The United States Senate passed bipartisan legislation Tuesday to protect same-sex marriages, but, should it become law, what would that mean for same-sex couples in Michigan?
The Respect for Marriage Act bill would ensure that same-sex and interracial marriages are enshrined in federal law. It was approved by a vote of 61-36, including support from 12 Republicans. Some people in the LGBTQ+ community believe the bill doesn’t go far enough.
The legislation would not require all states to allow same-sex couples to marry. Instead, it would require states to recognize all marriages that were legal where they were performed, and protect current same-sex unions if the 2015 Supreme Court decision in Obergefell v. Hodges is overturned.
Obergefell v. Hodges was the Supreme Court decision that made same-sex marriages legal in every state. Jim Obergefell was the lead plaintiff in the case. He spoke to CNN after the Senate passed the legislation on Tuesday.
“This act does not respect the LGBTQ+ community, our marriages, our relationships, or our families, and the fact that this act would allow states to once again deny marriage licenses to same-sex couples -- where is the respect in that?” Jim Obergefell said. “I’m happy to have this as opposed to having everything be taken away, but this is not respect for marriage. This would take us back to a time where we are once again second-class citizens who are given something that isn’t marriage, isn’t respected or protected and offered equally to every person in this country. That is my issue with the Respect for Marriage Act.”
Read more: Landmark same-sex marriage bill wins Senate passage
What would happen in Michigan if Obergefell is overturned?
The bill gained momentum after the Supreme Court decided to overturn the federal right to an abortion. The ruling included a concurring opinion from Justice Clarence Thomas that suggested same-sex marriage could also come under threat.
“While it’s essential that Congress pass this important act, if Obergefell is overturned, same-sex couples will NOT be permitted to marry in Michigan. They must travel to other states, which means [Michigan] businesses will lose millions in revenue. Time for another ballot proposal,” Michigan Attorney General Dana Nessel said.
Earlier this month, Michigan voters approved a ballot proposal that will amend the Michigan Constitution to codify abortion rights in the state. The proposal was introduced in anticipation of the Supreme Court’s decision to overturn Roe v. Wade, the ruling that protected the right to abortions nationwide.
According to Nessel, “if Obergefell falls without the Respect for Marriage Act, [there will be] no further same-sex marriages in Michigan and no recognition for out-of-state same-sex marriages (although expect litigation about whether currently married couples are grandfathered in).
“If Obergefell falls with the Respect for Marriage Act having passed, all current same-sex marriages or couples married out-of-state recognized under Michigan and federal law (even if Windsor also falls) but no new marriages allowed in our state [because] of the Michigan Marriage Amendment of 2004.”
The United States v. Windsor case found that the federal government could not discriminate against married same-sex couples regarding federal benefits and protections.
“Celebrating the passing of recognition of same-sex marriages by the federal government and in states across the union for those married in states where same-sex marriage is legal, but reminding people that Michigan will still ban the rendering of marriage licenses to same-sex couples if Obergefell falls,” Nessel said. “If and likely when Obergefell is overturned, clerks in all 83 counties in Michigan will have to turn same-sex couples away when applying for a marriage license.”
The 2004 amendment made it unconstitutional for Michigan to recognize or perform same-sex marriages or civil unions. It faced multiple legal challenges and was overturned through the decision in Obergefell v. Hodges.
“Time to repeal the 2004 Michigan Marriage Amendment so that Michigan residents can know they will be treated with equal dignity under the law, irrespective of the makeup of the United States Supreme Court,” Nessel said.
There are two paths forward for supporters of same-sex marriage in Michigan. A group could gather signatures to put it on the ballot, or the legislature could vote to put an amendment codifying the right to same-sex marriage on the ballot.
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