House Passes Same-Sex Marriage Protections in Response to Roe Ruling, With Murky Senate Path Ahead

Jonathan Ernst | Reuters
  • The House voted to pass legislation to codify same-sex marriage nationwide and strengthen other marriage-equality protections.
  • The bill is a direct reaction to the Supreme Court's ruling striking down Roe v. Wade and overturning long-standing federal abortion rights.
  • Justice Clarence Thomas argued the court should reconsider other landmark cases establishing the rights to obtain contraception, engage in private sex acts and marry someone of the same sex.

The House on Tuesday passed legislation to codify same-sex marriage nationwide and strengthen other marriage-equality protections, in a direct reaction to the Supreme Court's recent ruling that overturned long-standing federal abortion rights.

The bill, which passed 267-157, was expected to make it through the Democrat majority of the House. But it faces an uncertain future in the Senate, where passage will require at least 10 Republican votes.

Forty-seven Republicans voted for the bill alongside all Democrats. Rep. Ritchie Torres, D-N.Y., the first openly gay Afro-Latino member of Congress, presided over the vote.

The Respect for Marriage Act would establish that a marriage is considered valid under federal law if it was legal in the state where it was performed. The bill would explicitly bar anyone from denying "full faith and credit" to an out-of-state marriage based on sex, race, ethnicity or national origin, regardless of any individual state's law. It would grant the U.S. attorney general the authority to enforce that rule through civil action.

It would also fully repeal the Defense of Marriage Act, known as DOMA, the 1996 law signed by then-President Bill Clinton that defined marriage as being the union of a man and a woman.

The Supreme Court gutted DOMA through its 2013 ruling in United States v. Windsor. Two years later, the court ruled in Obergefell v. Hodges that the Constitution guarantees same-sex marriage rights. Though defanged, DOMA technically remains a law, and the House now aims to scrub it from the books entirely.

But to make it to President Joe Biden's desk, the bill will need to survive the Senate, where the parties are split 50-50 and 60 votes are required for most legislation to pass. Many conservatives in the chamber will likely argue states should decide their own same-sex marriage laws.

"Today's vote was about protecting the children and loving families whose whole lives rely on the constitutional guarantee of marriage equality," House Judiciary Committee Chair Jerry Nadler, D-N.Y., said in a statement following the passage of the bill, which he sponsored.

Lawmakers are also expected this week to vote on a bill enshrining the right to contraception — another push to protect rights spurred by the court's major decision last month in Dobbs v. Jackson Women's Health Organization. The ruling struck down the legal precedents that had protected abortion rights for nearly 50 years.

The conservative majority, which includes three justices appointed by former President Donald Trump, argued in part in its ruling that "the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

That legal reasoning sparked widespread fears that the court could threaten other rights previously considered settled.

A concurring opinion from Justice Clarence Thomas amplified those concerns. The justice argued that the ruling in Dobbs should lead the court to reconsider the landmark cases establishing the rights to obtain contraception, engage in private sex acts and marry someone of the same sex.

"I first filed the Respect for Marriage Act over a decade ago. Since then, the fight for marriage equality has seen many highs and lows, but perhaps none more frightening than the current threat posed by Clarence Thomas and this conservative Supreme Court," Nadler said in his statement Tuesday afternoon.

"I hope that my colleagues in the Senate will take up this bipartisan bill without delay and provide much needed stability and certainty for the families that have been shaken to their core by Justice Thomas's concurring opinion in Dobbs v. Jackson," Nadler's statement said.

Other justices did not echo Thomas' opinion. But it raised concerns that the court, which now has a 6-to-3 conservative majority, would be willing to take up cases challenging those rights in the future.

Justice Samuel Alito, who wrote for the majority in the Dobbs decision, stressed, "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

But critics, including the court's three liberal justices, were unconvinced.

"We cannot understand how anyone can be confident that today's opinion will be the last of its kind," the liberals wrote in a fierce dissent in Dobbs.

Sen. Dick Durbin, D-Ill., said Monday that he believes the bills protecting same-sex marriage and contraception can overcome the Senate's 60-vote hurdle, NBC News reported. Some Republican senators gave noncommittal answers when asked by NBC if they would vote for the legislation.

Sen. Ted Cruz, R-Texas, meanwhile, said Sunday that the high court's ruling to enshrine same-sex marriage was "clearly wrong."

The Biden administration strongly endorsed the Respect for Marriage Act ahead of Tuesday's vote.

"No person should face discrimination because of who they are or whom they love, and every married couple in the United States deserves the security of knowing that their marriage will be defended and respected," the administration said in an official policy statement.

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