The House passes bill codifying same-sex marriage: Here’s what you need to know

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The House passed the Respect for Marriage Act this week in a bid to codify the Supreme Court decision in Obergefell v. Hodges that required states to recognize same-sex marriages. It would also repeal the Defense of Marriage Act (DOMA), a bipartisan effort supported by then-Sen. Joe Biden and now Senate Majority Leader Chuck Schumer and signed into law by President Bill Clinton in 1996.

Here’s what you need to know about the Respect for Marriage Act:

What does it say?

The heading of the bill says, “To repeal the Defense of Marriage Act and ensure respect for State regulation of marriage, and for other purposes.” The Defense of Marriage Act (DOMA) was passed in 1996 and defined marriage as between one man and one woman. The law was later ruled unconstitutional by Obergefell.

The Respect for Marriage Act repeals DOMA’s provision that states can deny gay couples the right to marry. Under the act no person acting under state law may deny:

“full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals,”

Or:

“a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.”

The bill authorizes the Attorney General to bring civil action against anyone who violates the bill and also allows any person who alleges to be harmed by a violation of the bill to bring civil action.

Why pass the bill when Obergefell gives same-sex couples the ability to marry?

This is one of a number of bills House Democrats have introduced after the Supreme Court’s overturn of Roe v. Wade. Democrats claim that many liberties that were established by Court decisions could be removed, keying on Justice Clarence Thomas’s concurring opinion in which he said that the Court should revisit prior decisions made on the same substantive due process reasoning and without strong legal precedent as Roe v. Wade, including Obergefell. No other justice joined Thomas’ concurring opinion, and the majority made it clear that their ruling in Dobbs v. Jackson pertained only to abortion (and Thomas agreed with this point on page 3 of his concurrence). Critics, and even some Democrats note that these bills are more about messaging for elections than about passing legislation.

What are people saying about it?

Rep. Jerry Nadler, D-N.Y., who sponsored the bill, said, “Three weeks ago, a conservative majority on the Supreme Court not only repealed Roe v. Wade and walked back 50 years of precedent, it signaled that other rights, like the right to same-sex marriage, are next on the chopping block.”

He added,

“As this court may take aim at other fundamental rights, we cannot sit idly by as the hard-earned gains of the equality movement are systematically eroded. If Justice Thomas’ concurrence teaches anything it’s that we cannot let your guard down or the rights and freedoms that we have come to cherish will vanish into a cloud of radical ideology and dubious legal reasoning.”

House Speaker Nancy Pelosi, D-Calif., said, “We are here because, just three weeks ago, the Republican-controlled Supreme Court overturned Roe v. Wade: ripping away a woman’s freedom over her most intimate health decisions.”

Taking aim at the Court she said, “These radical Justices took a wrecking ball to [the] precedent of the Court and privacy in the Constitution — and placed even more of our cherished freedoms on the chopping block.”

White House Press Secretary Karine Jean-Pierre said the Respect for Marriage Act is “personal” to President Joe Biden. “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,” Jean-Pierre said. “He believes it is non-negotiable and that the Senate should act swiftly to get this to the president’s desk. He wants to sign this.”

Democrats claimed that bill was needed to protect interracial marriage as well. Justice Thomas is in an interracial marriage.

Although 47 Republicans voted for the bill, the large majority did not. Rep. Jim Jordan, R-Ohio, who voted against the bill, stated, “We are here for a political charade, we are here for political messaging.”

He claimed this was the latest installment of Democrat efforts to “delegitimize and attempt to intimidate the United States Supreme Court.”

Rep. Mike Johnson, R-La., said, “There’s not a single Republican even talking about that or any of these other categories in the law. This is designed to divide the country. This bill is a shameful effort.”

Will the bill pass the Senate?

Hard to tell at this point. As noted earlier the legislation garnered 47 Republican votes in the House and it does have supporters in the Senate. However, whether the bill is even taken up remains to be seen. While previously declining to comment on whether the Senate would take up the bill, Sen. Majority Leader Chuck Schumer, D-N.Y., indicated Wednesday that he would like to bring the bill to the floor.

Sen. Minority Leader Mitch McConnell, R-Ky., said he would wait to comment until after Schumer had decided to take up the bill.

Sen. Dick Durbin, D-Ill., said that same-sex marriage and contraception protections were Democratic priorities, but “we have more priorities than we have time.” Durbin did indicate that he believed the bill would get the 60 votes needed to pass.

Republican Sen. Susan Collins, Maine, has said she will back the legislation, while Republican Rob Portman, Ohio, is co-sponsoring the Senate’s version of the bill. Sen. Lisa Murkowski, R-Alaska, has signaled her support for codifying same-sex marriage rights. Sen. Thom Tillis of North Carolina has said he “probably will” vote to pass the legislation.

Senate Republican whip John Thune said he “would not be surprised” if enough Republicans supported the bill for it to pass.

While most expect the bill to fail in the Senate, it looks like it will be a closer vote than many recent bills.

What else is there to know?

While the Respect for Marriage Act is described as “personal” to Biden, both he and Schumer voted for DOMA when it was passed in 1996, Biden as a senator and Schumer while a U.S. representative.

What other bills codifying past Supreme Court decisions has the House passed recently?

Earlier today, the House passed a bill codifying access to contraceptive products, including birth control pills, intrauterine devices (IUDs), and condoms. The issue is hardly controversial, but the case that made contraception legal among married couples in 1965, Griswold v. Connecticut, was also cited by Justice Thomas in his concurring opinion on the Dobbs case. Only eight Republicans voted for the bill. Many of the Republicans who voted against it consider the bill a virtue-signaling gimmick that tries to provide a solution to a non-problem, since in no “shape or form is access to contraception limited or at risk of being limited,” according to Rep. Kat Cammack, R-Fla.

Other say the bill, known as the Right to Contraception Act, which was introduced on Friday and debated on Monday, has been rushed through for political expediency and could be a back-door way to legalize abortion medications, which are sometimes labeled as contraceptives.

Rep. Beth Van Duyne of Texas, who voted against the bill, described it as “poorly-drafted and loosely-defined” during a speech on the House floor and stated that it “would be detrimental to women’s health and send taxpayer dollars straight to abortion-on-demand beneficiaries.”

Like the same-sex marriage bill, it’s unclear if the Senate will take up the Right to Contraception Act and how the vote will go.

The House also recently passed the Women’s Health Protection Act, which would legalize abortion medication nationwide, and the Ensuring Access to Abortion Act, which prevents states from restricting women’s ability to travel to receive an abortion. Both of these bills are expected to fail in the Senate.