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It’s Time to Codify Marriage Equality in the US

Health & Gender Policy Brief #144 | By: Emily Scanlon | September 20, 2022

Header photo taken from: Health Affairs

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House passes Respect for Marriage Act in move to protect same-sex marriage.

Photo taken from: USA Today

Policy Summary

After the overturn of Roe v. Wade in June 2022, the GOP Supreme Court Justices made it clear: Marriage equality is next. In the Court’s decision, Justice Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Justice Alito included Loving v. Virginia in his draft opinion, though Justice Thomas left it out. 

In response, the Respect for Marriage Act (H.R. 8404) was introduced to the House on July 18th, 2022. The Respect for Marriage Act would require the federal government to recognize the validity of same-sex and interracial marriages, thus codifying the Supreme Court decisions on Loving v. Virginia (1967) and Obergefell v. Hodges (2015), which ruled that state laws barring interracial and same-sex marriages, respectively, were unconstitutional. The act would repeal the Defense of Marriage Act, signed by President Bill Clinton in 1996, which allowed states to refuse to recognize same-sex marriage.

On July 19th, the Respect for Marriage Act passed in the House 267-157. 47 Republicans voted to pass, a shockingly high amount. Members of both parties were surprised by the high number of Republicans supporting the bill, though many Republican members maintain the bill is nothing more than a distraction from inflation and other high-priority issues. 

The Republican Party has been slowly inching away from their stark opposition to same-sex marriage, especially the younger members. Even Mitch McConnell (R-KY) has not said whether he would support the bill, citing the need to reach suburban, moderate Republican voters. Support among Americans for same-sex marriage has been rising, with a new Gallup poll finding that 71% of Americans support same-sex marriage being recognized as valid by the law.

Despite passing in the House, the bill faces uncertainty in the Senate with a 50-50 split. Democrats need to win 10 Republican votes to avoid a filibuster. Currently, there are 5 Republicans who have said they would vote yes: Susan Collins (ME), Lisa Murkowski (AK), Rob Portman (OH), Thom Tillis (NC), and Ron Johnson (WI).

Policy Analysis

Chart taken from: Gallup News

(click or tap to enlargen)

On September 15th, Senate Democrats announced they will delay a vote on the Respect for Marriage Act until after the November midterm elections. Senator Tammy Baldwin (D-WI), the lead sponsor of the bill, has expressed her confidence in gaining support from 10 Republicans by that time. The additional hope, of course, is that the midterm elections will bring more Democrats into the Senate. 

The move is a risky one; many Republican Senators have breathed a sigh of relief at the news. Many Republicans, by refusing to take a stance, are attempting to play to both sides of their party. 

Opposing the bill would mean they face backlash from their moderate supporters, while supporting it would enrage their more radical supporters. With the delay of the vote, then, Republican voters will not be swayed by Senators’ decisions on the bill.

That being said, the Republican base may be shifting away from the Party even without this vote. Moderate Republican voters, already having been turned off by the GOP’s move to overturn Roe v. Wade, may grow even more distant from the party if marriage equality is struck down. The Republican Party, it seems, is dramatically underestimating the importance of these social issues to their base.

Regardless of the November midterm results, the time has long past for marriage equality to be codified in America. As Senator Elizabeth Warren (D-MA) stated, “Every single member of Congress should be willing to go on the record. And if there are Republicans who don’t want to vote on that before the election, I assume it is because they are on the wrong side of history.”

Engagement Resources​

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LovingDay is the anniversary of the landmark court decision for interracial marriage, Loving v. Virginia. Every year on June 12th, it’s a global day of visibility, education, and community.

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