The House on Tuesday passed a bill codifying federal protections for same-sex marriage amid growing concern among some lawmakers and advocates that the Supreme Court could revisit its landmark 2015 decision.
After the Supreme Court’s decision to nullify federal abortion protections, House Democrats are pushing to protect other rights they believe were left vulnerable following the court’s overturning of Roe v. Wade.
All 220 House Democrats voted in favor of the Respect for Marriage Act on Tuesday, with 47 Republicans also in support.
Because of the Senate’s filibuster rules, 60 votes are needed to get the act through Congress. So far, though, no concurrent bill has been introduced in the Senate .
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Republican members of the House Rules Committee on Monday criticized Democrats for pushing the bill through after receiving it one hour before the committee’s hearing. Republican members said the bill needed to go through question and debate in the Judiciary Committee.
Same-sex marriage was one of a handful of personal rights called into question in Justice Clarence Thomas’s concurring opinion on the Supreme Court’s Dobbs v. Jackson ruling, which overturned Roe v. Wade.
Thomas said other rights that fall under substantive due process could be overturned by the court in the future. Along with the case that legalized same-sex marriage, Thomas cited cases protecting access to contraceptives and criminalizing sexual contact with those of the same sex.
Obergefell v. Hodges legalized same-sex marriage in 2015, giving a national standard for what had been a patchwork of state rulings. Some states legalized same-sex marriage, while others bannedit or had no laws on the books .
The bill repeals the In Defense of Marriage Act, which passed in 1996 and specified that marriage was between one man and one woman. The law was deemed unconstitutional by the Supreme Court.
President Joe Biden expressed his support for codifying same-sex marriage, and called the Defense of Marriage Act “an unconstitutional and discriminatory law.”
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LGBTQ lawmakers fear other rights threatened
Thomas was the only justice to explicitly indicate the Court could revisit same-sex marriage. The majority opinion in Dobbs authored by Justice Samuel Alito states that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But House Democrats who identify as members of the LGBTQ community told USA TODAY that they didn’t trust that the court wouldn’t revisit same-sex marriage in the future.
“I never thought the Supreme Court would ever be a threat to my rights,” said Rep. Mark Takano, D-Calif. “But we have one justice clearly, plainly and candidly saying that that’s what he wants to do. And we have other justices whose words I do not trust. They have shown themselves to be liars and ideologues, that they are creatures of politics, not of justice.”
Takano said his office is working to codify other protections for the LGBTQ community as well.
The clause Thomas cited includes rights not explicitly guaranteed in the Constitution but protected under the 5th and 14th amendments. Rights to abortion, contraception, interracial marriage, same-sex marriage, the right to same-sex sexual intimacy have all been upheld by the Supreme Court under substantive due process.
Rep. Ritchie Torres, D-N.Y., a co-chair of the House LGBTQ+ Equality Caucus who identifies as gay, said that the challenge to LGBTQ equality currently is “unprecedented” in light of the Dobbs decision.
“Justice Thomas is on a mission, he has declared war on all of these fundamental rights and the doctrine of substantive due process upon which those rights depend,” he said. “It reminds us that we cannot take for granted the inevitability of progress.”
Bill’s Senate prospects are unclear
Members of the House LGBTQ+ Caucus said a top priority is passing a bill that would prohibit discrimination on the basis of sex, sexual orientation and gender identity in public and private services such as housing, education and employment.
Rep. Chris Pappas, D-N.H., said the Supreme Court overturning same-sex marriage would produce “a patchwork” of laws across states.
“We clearly have some more work to do as we move forward here, but I’m optimistic because not only do we have a pro-equality majority in the House, we do in the country at large,” Pappas said.
Rep. Mark Pocan, D-Wis., said that the Supreme Court’s decision to overturn Roe v. Wade, a “settled law for almost half a century,” meant its same-sex marriage decision was vulnerable to the same outcome. But even as the Respect for Marriage Act passed the House, he said he was unsure it could survive the Senate.
“There’s a black hole that even the Webb Telescope can’t fight through to find out what’s happening in the Senate,” he said. “Just pragmatically, that’s a definite barrier to a kind of legislative fix.”
