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What the Respect for Marriage Act means to and for Washingtonians

It's a dramatic period of time for LGBTQ+ rights in this country. Just last week, we marked the 10-year anniversary of legal same-sex marriage in Washington state. Washington was among the first states to approve it. And tomorrow, President Biden is set to sign into law the Respect for Marriage Act, which requires the federal government to recognize same-sex and interracial marriages from across the country.

This leads some of us to ask, how secure are those rights? KUOW’s Kim Malcolm discussed this historic moment with University of Washington law professor Peter Nicolas.

This interview has been edited for clarity.

Kim Malcolm: For those of us who thought this was a done deal, why is this act significant?

Peter Nicolas: You're correct that people might view this as redundant, given the Supreme Court's decisions in 2013, and again in 2015. But we also thought about six months ago that abortion was legal and protected nationwide, and we've seen that change. As the stability of the Supreme Court has changed, it's become necessary to have some legislation as a backup in case they overrule any of their previous decisions.

What kind of protection does the Respect for Marriage Act guarantee to LGBTQ+ couples?

What it does not do is require any state to allow same-sex couples to marry. What it does say is if you live in a state like Washington, which has already recognized and protected same-sex marriage, the federal government and all of the other states have to respect that marriage.

So essentially, it's transportable, and despite what the situation may be in any given state, your marriage is protected under federal law.

That's correct. It codifies the Supreme Court's 2013 decision in Windsor, requiring the federal government to recognize same-sex marriages lawfully entered into in other states. And it codifies half of the Obergefell decision, requiring states to respect other states’ marriages, but not to require it in the first instance.

There are concerns in the LGBTQ+ community and beyond that the Supreme Court might overturn the Obergefell decision. If it were to be overturned, what would that mean for the Respect for Marriage Act?

What it would really mean is that that's when the Respect for Marriage Act kicks in. Right now, everything that's in the Respect for Marriage Act is already protected by existing Supreme Court decisions. If the Supreme Court were to go in and overrule Obergefell, and Windsor, that's when the act would have more meat to it, because then that's what people would be relying on. It would require every state to respect the marriages that are out there.

For a state like Washington, we already protect same-sex marriage under state law, so nothing would change directly for us. But it would have an impact on someone in a state like Idaho or Florida, where now their state may go in and prohibit same-sex marriage, and they're going to have to go back to the pre-2015 regime, and maybe fly to Washington state and get married, if that's what they want to do.

It was pretty striking that this happened just as we're marking the 10-year anniversary of same-sex marriage being made legal here in Washington state. Thinking back, how important was that step?

That step was critical, because, in essence, we are no longer at the whim of the Supreme Court. We beat the Supreme Court to legalizing same-sex marriage, and we did it through a vote of the people. So, the right is pretty secure in Washington state.

It is definitely important, that that step was in place because right now, what's happening with abortion, where Washington already protected that right as well, the overturning of Roe didn't directly impact Washington right away in terms of undermining that right. But for states that don't have something like that as a backdrop, it really is a danger for people in those states.

Listen to the interview by clicking the play button above.

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