The U.S. Supreme Court is threatening marriage equality. These lawmakers want to protect it

In the wake of last month’s Supreme Court ruling overturning abortion rights, lawmakers in the U.S. House of Representatives have passed legislation that would secure marriage equality at the federal level should justices continue to chip away at foundational rights. But it remains unclear whether the bill will amass enough Republican support to make it through the divided Senate. 

A bipartisan group of lawmakers in the House and Senate introduced the Respect for Marriage Act July 18, and the House subsequently passed the bill by a 267-157 margin the following day. Every Democrat voted in favour of the legislation, and the final tally included the support of 47 Republicans. If signed into law, the bill would mandate federal recognition of both same-sex and interracial marriages, ensuring that these unions are legally valid even in states other than the ones where they were certified. 

The proposal would also repeal the Defense of Marriage Act, a controversial bill signed into law in 1996 by then-president Bill Clinton. The federal statute defined marriage as being only between a man and a woman and declared that no state should be required to recognize a same-sex marriage performed in another state. While DOMA was technically made unenforceable by 2015’s Supreme Court ruling in Obergefell v. Hodges—which legalized same-sex marriage in all 50 states—lawmakers say it’s necessary to repeal the law entirely in the face of the Supreme Court’s recent actions. 

The Respect for Marriage Act is a direct response to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization in June, which overturned Roe v. Wade and eliminated a federal right to abortion. In a concurring opinion released alongside the ruling, Justice Clarence Thomas called into question the validity of the court’s decisions on issues like marriage equality and the right to birth control—as these rulings were determined via the same principles that secured Roe. Thomas, one of the bench’s most hardline conservative members, was one of four justices to rule against marriage equality in 2015’s Obergefell v. Hodges. 

Thomas previously hinted at his desire to overturn Obergefell in a joint opinion with Justice Samuel Alito, who authored the majority opinion in Dobbs. In October 2020, the court declined to hear the case of Kim Davis, the former Kentucky clerk who was jailed for five days in August 2015 after refusing to issue a marriage certificate to a gay couple. But in a statement at the time, the two justices expressed support for Davis and claimed that the legalization of marriage equality had produced “ruinous consequences for religious liberty.”

Several prominent members of Congress have also joined in calls to overturn Obergefell, most recently including Sen. Ted Cruz (R-Texas). 

Sponsors of the Respect for Marriage Act hope the legislation will prevent Republicans like Cruz from rolling back LGBTQ2S+ rights following Roe’s repeal. “We cannot sit idly by as the hard-earned gains of the Equality movement are systematically eroded,” said House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), one of the bill’s chief sponsors, in a statement. “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.”

Openly LGBTQ2S+ lawmakers praised the move as well. “Marriage equality is a constitutional right that has been well established by the Supreme Court as precedent and this freedom should be protected,” said co-sponsor Tammy Baldwin, the first openly lesbian senator in U.S. history, in a press release. “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.”

The Respect for Marriage Act has been tabled to Congress in previous years, beginning with its initial introduction in 2009. It remains unclear whether the legislation will be able to gain the 10 votes from GOP senators to make it through a Senate that is split evenly between Republicans and Democrats. A minimum of 60 total votes is necessary to bypass the filibuster and prevent conservatives from stonewalling the effort.

This same gridlock has also plagued the progress of the Equality Act, which would provide federal discrimination protections for LGBTQ2S+ people in areas like housing, healthcare and education. The legislation has failed to come up for a vote in the Senate despite passing the Democrat-majority House on two occasions.