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House Moves to Codify Marriage Equality Threatened by “Extremist Justices”

Even though the bill has bipartisan support, it faces difficult odds of passage in the Senate due to the filibuster.

Speaker of the House Nancy Pelosi speaks during her weekly press briefing on Capitol Hill in Washington, D.C., on July 14, 2022.

The United States House of Representatives will vote Tuesday on a bill that would enshrine federal protections for marriage equality across the country. The bill came about in response to concerns over a recent Supreme Court ruling where one justice suggested such protections should be reconsidered.

Justice Clarence Thomas, in his concurring opinion on Dobbs v. Jackson — the Supreme Court decision in June that undid nearly 50 years of abortion rights protections established in Roe v. Wade — said he believed that the Dobbs ruling should also lead the Court to “reconsider all … substantive due process precedents,” including in cases, such as Griswold v. Connecticut (right to contraceptives), Lawrence v. Texas (right to private, adult relationships, including same-sex relationships), and Obergefell v. Hodges — a 2015 ruling from the High Court that established federal marriage rights for same-sex couples.

Thomas claims the Court has a duty to “correct the error” that was supposedly established in these cases. That statement from the Court’s longest-tenured justice, as also the controversial manner in which Justice Samuel Alito and other conservative justices undid Roe, prompted lawmakers to craft the Respect for Marriage Act, a bill that would codify marriage equality protections recognized in Obergefell.

The new bill would officially repeal a 1990s law called the Defense of Marriage Act (DOMA), which said that the federal government would only recognize marriages between one man and one woman, and further stipulated that the marriage laws of one state (including same-sex marriages) don’t have to be recognized by another state. That law has not been enforced since the Obergefell decision, but technically remains on the books and could be enforced again, if the Supreme Court dissolves marriage equality rights the same way it dismantled abortion protections.

In addition to repealing DOMA, the Respect for Marriage Act would also require states to recognize same-sex marriages from other states, in the event that the Supreme Court undoes Obergefell.

“The Supreme Court’s extremist and precedent-ignoring decision in Dobbs v. Jackson has shown us why it is critical to ensure that federal law protects those whose constitutional rights might be threatened by Republican-controlled state legislatures,” House Majority Leader Steny Hoyer (D-Maryland) said on Monday.

Speaker of the House Nancy Pelosi (D-California) also said that it was necessary for the bill to pass, as “extremist Justices and lawmakers” plan to “take aim at more of our basic rights.”

It’s expected that the bill will pass in the House — however, it’s unclear as of right now whether the Senate will also pass the legislation. On Monday, Sen. Tammy Baldwin (D-Wisconsin), the first out lesbian in the Senate, and Sen. Dianne Feinstein (D-California) introduced the bill in that chamber, along with Sen. Susan Collins, a Republican from Maine.

“I take great pride in being a part of this bipartisan effort to protect the progress we have made on marriage equality, because we cannot allow this freedom and right to be denied,” Baldwin said in a statement regarding the legislation.

Although the bill has bipartisan support in the Senate, it is unlikely that enough Republicans will cross partisan lines with Democrats in order to defeat a Senate filibuster, which requires 60 senators in order to pass any legislation. At least 10 Republicans are needed, alongside every senator who caucuses with the Democrats, in order for that threshold to be met.

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