The Respect for Marriage Act and its impact on same-sex couples in Kansas

Patrick R. Miller
Patrick R. Miller

The Respect for Marriage Act provides stronger federal safeguards for married same-sex couples in Kansas. Bipartisan majorities passed it through Congress and President Joe Biden recently signed it into law.

You might think that marriage is a settled debate. However, as recent politics shows, conservatives in the politics industry are prioritizing the culture war beyond just abortion, especially targeting transgender children and gay and lesbian Americans.

In our recent Kansas gubernatorial election, Republicans dedicated entire campaign advertisements to transgender students playing sports, hyping that issue above water, energy or certain key economic matters.

In October, Republicans promoted a false British tabloid story about supposed taxpayer-funded drag shows in Kansas. On Twitter, U.S. Sen. Roger Marshall used that story to validate homophobic stereotypes of gay people as sexual predators "grooming" children.

This past summer, conservative Supreme Court Justice Clarence Thomas urged the court to "reconsider" past rulings that legalized contraception (Griswold), same-sex sexual relations (Lawrence), and same-sex marriage (Obergefell).

How does the RMA fit into this mounting conservative emphasis on LGBT people? And, what does that mean for gay and lesbian Kansans, especially the estimated 4,000 same-sex married couples in Kansas?

Let's start with Kansas law.

The Kansas Constitution contains an unenforceable provision banning same-sex marriage. Much has changed since voters approved this in 2005. Young people, including young Republicans, generally support same-sex marriage in surveys, and no Kansans under roughly age 35 today voted on that ban.

Repealing this marriage ban requires the Legislature to put a constitutional amendment on the ballot. Conservatives realize that most Kansans today support same-sex marriage — roughly 60-ish percent in most surveys since 2017. They know how you would vote on this, so don't expect conservatives to allow a marriage ban repeal vote anytime soon.

Kansas law also criminalizes sex between consenting same-sex adults, making it a misdemeanor punishable by six months incarceration. The 2003 Lawrence decision makes this law unenforceable, but Kansas conservatives have repeatedly refused to repeal the law.

The RMA doesn’t address state laws regulating sex, but it does guarantee federal recognition to same-sex marriages. Simplifying things, it also clarifies that the full faith and credit clause of the U.S. Constitution requires that marriages in one state must be recognized in others, including same-sex marriages. Meanwhile, it gives explicit exemptions for religious non-profits that oppose same-sex relationships.

So, what if Thomas prevails on marriage and sex, and Kansas changes no laws?

Kansas government could stop issuing marriage licenses to same-sex couples and might try nullifying existing marriage licenses issued here. Thanks to the RMA, though, same-sex couples willing and able to travel could marry in another state and Kansas would have to recognize those marriages. However, it would still be illegal for same-sex spouses to have sex in Kansas.

Most Kansans agree that the ideology of big government conservatism that desires to regulate marriage and sex among two consenting adults is outdated. Conservative politicians are playing to a narrow strain of identity politics on the political right with their positions on these issues.

That political game comes at the expense of average gay and lesbian Kansans that these positions risk harming. If that's not you, maybe it's a friend or loved one. That's not what most Kansans want in 2022, but it's up to average Kansans to hold politicians accountable on that.

Patrick R. Miller is an associate professor of political science at the University of Kansas.

This article originally appeared on Topeka Capital-Journal: What is the effect of federal gay marriage law RMA on Kansas couples?