In 1996, Congress passed and President Bill Clinton signed one of the most misleadingly named bills in the twentieth century: the Defense of Marriage Act, also known as DOMA. It did not defend a single marriage in the nearly two decades that it remained on the books. To the contrary, DOMA denied federal legal benefits of marriage to countless couples solely because the spouses happened to be of the same gender.
On Tuesday, the House of Representatives passed a bill to replace DOMA called the Respect for Marriage Act, which is considerably more accurately named. If signed into federal law, it would ensure that same-sex couples receive equal treatment under federal law. The Senate is reportedly expected to take up the bill soon as well.
Congress’s move to shore up marriage equality is long overdue. For one, it makes good electoral sense. Seventy-one percent of Americans told Gallup last month that they approve of same-sex marriage, a share that is more than two and a half times greater than when the question was first asked in 1996, the year that Congress passed DOMA. That support is now fairly broad and deep as well. Majorities of Republicans, Protestants, and adults over the age of 65 have now said they support same-sex marriage, with only weekly churchgoers as the last holdouts, Gallup said.
The Respect for Marriage Act is not only correct as a matter of public policy, it is also good politics. By pushing for a vote on the Respect for Marriage Act, Democrats have forced House Republicans (and likely their Senate colleagues too) to make their views explicit when it comes to marriage equality. And on Tuesday, 157 Republicans voted against the Respect for Marriage Act.
The GOP remains formally opposed to same-sex marriage: Its 2020 platform, which simply restated the party’s 2016 platform, complained that “five unelected lawyers [had] robbed 320 million Americans of their legitimate constitutional authority to define marriage as the union of one man and one woman,” referring to Obergefell v. Hodges, the Supreme Court’s landmark case in 2015 establishing marriage equality. The platform also called for the confirmation of “justices and judges” who “respect the authority of the states to decide such fundamental social questions.”
That policy stance, however, is now fairly out of sync with the views of a supermajority of Americans. A significant number of House Republicans—47, according to reports of the count—voted for the bill on Tuesday night, reflecting a growing fissure among conservatives over the issue. By forcing them to take an up-or-down stand on the issue, Democrats have underscored the broad public support for same-sex marriage and highlighted the stark contrast between themselves and the GOP on LGBT rights.
The bill also serves as a strong response of sorts to the Supreme Court’s hints of antagonism toward other rights. “This legislation would secure marriage equality in the United States,” the White House said in a statement Tuesday that expressed support for the bill. “The right to marriage confers vital legal protections, dignity, and full participation in our society. 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.”
It was not necessary for the White House to say whom same-sex marriages would have to be “defended” from: It would be the Supreme Court, which only seven years ago recognized the right to same-sex marriages nationwide. In Dobbs v. Jackson Women’s Health Organization last month, Justice Samuel Alito wrote for the court that the decision to overturn Roe v. Wade did not automatically jeopardize other landmark substantive due process rulings, including Obergefell, the 2002 ruling in Lawrence v. Texas that struck down state “sodomy laws” nationwide, and the 1965 ruling in Griswold v. Connecticut that overturned state laws banning contraception for married couples. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.
His reassurances were considerably undercut by his colleague Justice Clarence Thomas, who agreed with Alito’s description of the ruling in Dobbs and then went on to say that, yes, the court should “reconsider” Obergefell, Lawrence, Griswold, and certain other Supreme Court precedents on Americans’ unenumerated rights. A host of Republican senators and state officials have also renewed their criticism of those decisions in recent months, particularly Obergefell. While it’s unclear if there would be five votes on the court to overturn those precedents at the moment, those who support them cannot help but worry that the court’s reenergized conservative bloc will take aim at them next.
There is only so much that Congress can do if the Supreme Court eventually overturns Obergefell, however. While the White House said the Respect for Marriage Act would “secure marriage equality in the United States,” Congress can only address federal recognition of same-sex marriages. Marriage licenses themselves are governed by state law. A gay couple in Texas, for example, would likely still find themselves unable to obtain a license without Obergefell no matter what Congress does. By comparison, a gay couple in Massachusetts would still be able to get a license and also no longer have to worry that prevailing federal law would revert to the 1996 status quo in a post-Obergefell world. (DOMA was partially struck down in United States v. Windsor in 2012, but it’s unclear whether that decision would also automatically be imperiled if the court overturned Obergefell.)
There are not enough votes in either chamber of Congress for court-packing or other structural reforms to the Supreme Court, so in practical terms, Congress cannot prevent five justices from overturning Obergefell or other major precedents. (Again, whether they will choose to do it is still an open question.) But what Congress can do is take affirmative steps to protect those who would be affected by the high court’s reactionary turn—and force Republican lawmakers to show voters whether they will undermine those rights once in power. The conservative justices may not be up for reelection in November, but the party that put them in office will be.
