The Democratic-controlled House of Representatives took a key step to protect LGBTQ rights from the Supreme Court.
The House of Representatives overcame the opposition of 157 Republicans on Tuesday and passed a bill that would codify federal protections for same-sex and interracial marriages. The vote was 267-157 on passage of the Respect for Marriage Act, a bill designed to prevent the U.S. Supreme Court from rolling back more existing constitutional rights.
All 220 Democratic representatives and 47 Republicans voted in favor.
H.R. 8404, introduced Monday by Judiciary Committee Chair Jerry Nadler and 160 Democratic original co-sponsors, would repeal the 1996 Defense of Marriage Act and would establish:
No person acting under color of State law may deny—
"(1) 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
"(2) 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 Defense of Marriage Act, signed into law by former President Bill Clinton, both blocked any federal recognition of same-sex marriages from any state and said no state need recognize a same-sex union from another state as valid. While the provisions of DOMA were declared unconstitutional by the Supreme Court in its decisions in United States v. Windsor in 2013 and Obergefell v. Hodges in 2015, Section 7 of Title I of the U.S. Code still reads, "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
"The Respect for Marriage Act will protect same-sex and interracial marriages from any radical or bigoted decision that may come from the current extreme Supreme Court majority," Rep. David Cicilline (D-RI), who chairs the Congressional LGBTQ+ Equality Caucus, said in a press statement released on Monday. "I want the LGBTQ+ community to know that this caucus is fighting for them and their right to live freely. This legislation will protect their marriages and ensure they continue to be recognized, even if a future Supreme Court overturns landmark marriage equality decisions."
The Supreme Court ruled in Loving v. Virginia in 1967 that the equal protection clause of the 14th Amendment prohibits states from banning interracial marriages.
During his term in office, former President Donald Trump appointed three far-right judges to the Supreme Court, giving conservatives an overwhelming majority and casting doubt on the permanence of the rulings on marriage equality. When the conservative majority overturned the 50-year-old precedent in Roe v. Wade affirming a constitutional right to abortion nationwide on June 24, In his concurring opinion, Justice Clarence Thomas explicitly said in a concurring opinion that the court should now revisit precedents in the marriage equality cases as well as in other privacy-related cases:
Cases like Griswold v. Connecticut, (right of married persons to obtain contraceptives); Lawrence v. Texas, (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, (right to same-sex marriage), are not at issue. ... For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is "demonstrably erroneous," we have a duty to "correct the error" established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
"We thought the Democrats were obsessed with President Trump, but Justice Thomas is a close second," said Rep. Jim Jordan (R-OH), the ranking member of the Judiciary Committee, who led the opposition to the bill on the House floor on Tuesday. "This bill is simply the latest installment of the Democrats' campaign to delegitimize and attempt to intimidate the United States Supreme Court."
Jordan dismissed the legislation as "completely unnecessary."
Nadler said Monday that the legislation was necessary to address the threat to same-sex marriages:
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. 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's 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.
The bill now moves to the Senate, where it will need at least 10 Republican votes to overcome a filibuster. So far, only Republican Sen. Susan Collins (ME) has signed on as a co-sponsor.
Polling shows the vast majority of Americans support guaranteeing the freedom to marry to all adult couples, regardless of sexual orientation. The results of polling conducted among U.S. adults in 2021 by the nonpartisan research organization PRRI found 68% support for marriage equality, with just 30% opposed to allowing same-sex couples to marry.
Published with permission of The American Independent Foundation.