Respect for Marriage Act challenge unlikely to come from California

Married couples in the U.S. have always had the confidence of knowing their spouse's rights as a beneficiary - as a legal life partner able to share benefits and other perks - were protected under federal law and would never evaporate. But that's marriage between a man and a woman.

Same-sex couples could never rest easy because they were perpetually one unfavorable U.S. Supreme Court decision away from losing their insurance and additional benefits afforded to heterosexual partners - not to mention, in no small part, their identities.

All that changed with the stroke of a pen on Dec. 13 when President Joe Biden signed into law the bipartisan Respect for Marriage Act (RFMA). Repealing the infamous and antiquated Defense of Marriage Act, RFMA requires the federal recognition of the validity of same-sex and interracial marriages in the U.S., bringing with it a sense of resounding relief throughout the LGBTQ community.

The law is the latest legislation aimed at shoring up legal safeguards around personal autonomy in the wake of the gut-churning Supreme Court ruling in Dobbs v. Jackson Women's Health Organization, which not only overturned Roe v. Wade, but prompted a suggestion in concurrence from U.S. Justice Clarence Thomas that protections given to same-sex couples under Obergefell v. Hodges should similarly be reconsidered.

Obergefell was based on the same reasoning as Roe - that you have the right to choose what to do with your own body and a privacy interest in who you marry - but Thomas argued the court had a duty to "correct the error."

It was that very expression of duty that led to such a fervent renewed push to lock in Obergefell's protections and enshrine them in perpetuity under federal law even if the Supreme Court eventually overturns the landmark ruling. So, to some extent, the nation has Thomas to thank for this enormous step forward at a time when the country is hugely divided over cultural and political issues.

"The road to this moment has been long, but those who believe in equality and justice, you never gave up," Biden said in signing the bill into law. "So many of you put your relationships on the line, your jobs on the line, your lives on the line, to fight for the law I'm about to sign. For me and the entire nation. Thank you, thank you, thank you."

The law officially extends approximately 1,100 rights and benefits that had previously been federally denied to same-sex couples, including the right to benefits provided by a spouse's employment and estate and tax deductions. But it doesn't necessarily codify Obergefell under federal law.

It merely forces states without marriage equality laws on the books - and states whose conservatives aim to ban gay marriage outright - to recognize the legality of the marriages from other states that do allow such unions. Gay couples can now leave their state that doesn't allow them to marry, cross state lines to one that does, and return to their state knowing they will have the same rights and protections as every other married couple.

That said, some LGBTQ advocates have expressed disappointment that the law doesn't go further and only requires the government to recognize same-sex and interracial marriages - so long as they were officiated in a legalized state - rather than a full-fledged federal mandate on gay marriage.

But given its passage relied heavily on Republican congressional support, I think the result is the most reasonable and achievable compromise. The similarly minded Right to Contraceptives Act, for instance, which would enforce the protection of contraceptive rights at the local level, has stalled after facing heavy conservative opposition in the Senate. RFMA likely would be seeing the same fate had Democrats pushed for stronger protections.

Even with its passage, however, it's likely we'll see a string of legislative and judicial responses on the state level, particularly in areas of the country where same-sex marriages will be attacked in the wake of Dobbs. And if the Supreme Court were to overturn Obergefell - as Thomas suggested may occur - it's possible that several states would already have legislation in place to try to counteract the protections enshrined by the RFMA, leading to even more court battles.

Here in California, the latest federal protections are just playing catchup given same sex marriages have been recognized as protected on a state level for nearly a decade. Our courts, particularly the Ninth Circuit Court of Appeals, have long been at the forefront of leading the way on societal and cultural reforms.

Given the next major developments in this saga will likely be fought at the state level, particularly in places unfriendly to gay couples, or at the federal level up to the Supreme Court (i.e., a constitutional challenge of the FRMA), Californians may once again find themselves in the position of simply being able to sit back and watch what happens next.