The U.S. Congress may be on the cusp of passing legislation that would codify recognition of same-sex marriages under federal law, solidifying the right of LGBTQ couples to wed seven years after the Supreme Court ruled that such unions must be given legal recognition across the United States.
The House of Representatives, on July 19, passed the Respect for Marriage Act, 267-157, with 47 Republicans adding their support to the unanimous House Democrats. The bill is now before the Senate, which could vote on it as soon as next week.
The bill would need backing from at least 10 Republicans to pass, in addition to all of the body’s Democrats. So far, five GOP senators have said they will support the bill, and several others have said they are open to doing so.
Sen. John Thune of North Dakota, the third-ranking member of the Senate’s Republican leadership, told CNN, "As you saw there was pretty good bipartisan support in the House … and I expect there'd probably be the same thing you'd see in the Senate."
If it passes, it would go to President Joe Biden, who has signaled that he would sign it into law.
The Respect for Marriage Act would repeal the 26-year-old Defense of Marriage Act (DOMA), which explicitly denied federal recognition of same-sex marriages. It would require that all states recognize same-sex marriages performed in other states, and it would create additional federal protections for such unions.
Supreme Court’s role
DOMA, which became law in 1996, defined marriage as being between one man and one woman, and made it legal for individual states to refuse to recognize the validity of same-sex marriages performed in other states. It also codified non-recognition of same-sex marriages at the federal level, meaning that same-sex couples were not eligible for many of the benefits available to heterosexual couples, including Social Security survivor’s benefits, joint filing of tax returns, and more.
The law was effectively nullified by the Supreme Court in two decisions, United States v. Windsor in 2013, and Obergefell v. Hodges in 2015. However, changes to the composition of the court, giving conservatives a strong majority in recent years, have sparked concern in the LGBTQ community about the permanence of those rulings.
Those concerns were sharpened last month when the court ruled in the case of Dobbs v. Jackson Women’s Health. The case overturned the court’s own ruling in Roe v. Wade, the 1973 decision that found women had a right to an abortion.
In his opinion concurring with the decision, Associate Justice Clarence Thomas described the Obergefell decision as “demonstrably erroneous” and said that the court should revisit it, along with several other of the court’s precedents.
Ruling created urgency
LGBTQ rights organizations told VOA that the Supreme Court’s ruling in the Dobbs case set off immediate alarm bells, creating concern that their right to marry might be in danger.
“It signaled to the LGBTQ community that marriage equality could be next to see a rollback in rights, and I think you're seeing a reflection of that urgency,” Rich Ferraro, chief communications officer for GLAAD, told VOA. Formerly known as the Gay and Lesbian Alliance Against Defamation, GLAAD is a media monitoring organization that defends LGBTQ rights.
“We've only had marriage equality for a few years, and the entire community was up in arms reading [Thomas's ruling],” Ferraro said. “We know what it's like to be discriminated against. It was in the very immediate past that we didn't have marriage.”
“We’re certainly disappointed that Justice Thomas pointed at the Obergefell marriage decision as well as other Supreme Court precedents to … encourage challenges to those laws and potentially overturn them,” David Stacy, government affairs director for the Human Rights Campaign, told VOA. “The Respect for Marriage Act would help protect marriage equality, and in particular, federal benefits for same sex married couples, no matter what the Supreme Court might do in the future.”
Prospects in Senate
Before it can become law, the Respect for Marriage act must clear the 100-member Senate, which is divided 50-50 between Republicans and Democrats. The Democrats, who control the Senate only by virtue of a tie-breaking vote cast by Vice President Kamala Harris, are expected to support the bill unanimously.
However, Republican resistance is expected and GOP senators will likely take advantage of a procedural rule known as the “filibuster,” meaning that Democrats will not be able to advance the legislation without 60 votes.
The Respect for Marriage Act’s strong bipartisan vote in the House has raised hopes among advocates of the bill that a sufficient number of Republican senators will vote to overcome the filibuster. As of Friday, five Republicans had indicated their support, and a number of others have expressed openness to the possibility of voting in favor.
“I think we have a really good chance of seeing bipartisan support for this bill,” Kierra Johnson, the executive director of the National LGBTQ Task Force, told VOA. “Public support is high for marriage equality, and to not take the opportunity to codify this right now would fly in the face of where most people in this country are.”
However, a number of Republicans have expressed reservations, and some outright hostility, to the bill.
Florida Sen. Marco Rubio, for example, referred to the legislation as a “stupid waste of time.” South Carolina Sen. Lindsey Graham said that he continues to support the 1996 Defense of Marriage Act.
Sen. Jim Inhofe, of Oklahoma, who voted in favor of DOMA in 1996, said that his position has not changed. “My views on marriage have not changed and I would not support codifying same-sex marriage into law,” he told CNN.
Meanwhile, conservative advocacy groups are pressuring Republican senators who expressed disappointment with the Supreme Court’s Obergefell ruling in 2015 not to change course and support the Respect for Marriage Act.
“What’s changed? Not the significance of marriage or the Constitution. Not the Republican Party’s platform,” the Washington-based Family Research Council said in a tweet Friday. “Real leaders don’t vote out of fear or political calculus.”
More broadly, though, attitudes toward same-sex marriage have undergone a tremendous shift in the United States in recent decades. In 1996, when DOMA was passed, the Gallup polling firm found that only 27% of Americans supported same-sex marriage. Last month, Gallup found support had risen to a record-high 71%.
Attitudes among U.S. elected officials, particularly Democrats, have also changed significantly. The explicitly discriminatory DOMA was passed with support from large majorities of both Republicans and Democrats. It was signed by Democratic President Bill Clinton.
Among current House Democrats, there are 24 members who were in office in 1996 and voted in favor of DOMA. On Tuesday, all of them voted to repeal it.
As a senator in 1996, President Biden also voted in favor of DOMA. On Wednesday, White House Press Secretary Karine Jean-Pierre said the president was urging the Senate to pass the bill repealing it, saying, “He is a proud champion of the right for people to marry whom they love and is grateful to see bipartisan support for that right.”