House Passes Bill Codifying Federal Right to Same Sex Marriage

Senate Majority Leader Charles Schumer (D-N.Y.) and Speaker of the House Nancy Pelosi (D-Calif.) speak to reporters outside the White House in Washington on Nov. 29, 2022. Kevin Dietsch/Getty Images

The U.S. House of Representatives approved legislation on Dec. 8 that would codify same-sex and interracial marriage as a federally recognized right.

The Respect for Marriage Act, or H.R. 8404, passed on a bipartisan 258–169 vote. Thirty-nine Republicans joined all Democrats in the lower chamber to pass the bill. One Republican voted present, and four didn’t vote. The legislation now heads to the White House for President Joe Biden’s signature into law; he has said he'll sign it.

The House had approved the measure in July but was voting again because the Senate amended the proposal in November.

The bill includes a codification of the Supreme Court’s 2014 ruling in Obergefell v. Hodges, which declared a federal right to same-sex marriage on grounds of the 14th Amendment’s “equal protection” clause.

“I began my career fighting for LGBTQ communities—and now, one of the final bills that I will sign as Speaker will ensure the federal government never again stands in the way of marrying the person you love,” House Speaker Nancy Pelosi (D-Calif.) said in a recent statement.

‘Endanger Religious Freedom’

Critics of the bill have warned of the potential for it to target faith-based organizations and have refuted the notion that it’s merely a codification of Obergefell.

“The truth is the Respect for Marriage Act does nothing to change the status of same-sex marriage or the benefits afforded to same-sex couples following Obergefell,” the conservative Alliance Defending Freedom wrote in a blog post. “It does much, however, to endanger religious freedom.”

The Alliance Defending Freedom described the bill as “a direct attack on the religious freedom of millions of Americans with sincerely held beliefs about marriage.”

They said that by recognizing same-sex marriage in law, the bill “embeds a false definition of marriage in the American legal fabric.”

Further, “it opens the door to federal recognition of polygamous relationships” and “jeopardizes the tax-exempt status of nonprofits that exercise their belief that marriage is the union of one man and one woman.”

Republican proponents of the bill rejected the claim, saying that it ensured that same-sex marriages would be protected while respecting the rights of faith-based institutions.

Senate Passage

The Senate passed the final package of the Respect for Marriage Act on Nov. 28.

Ahead of a key vote to advance the package, Sen. Mitt Romney (R-Utah), who often defects from his party on legislation, tied his support for the bill to protections of the religious freedoms of faith-based institutions.

“If it includes important protections for religions and religious institutions, I will support it,” Romney told Politico.

Other Republicans, including Sens. Roy Blunt (R-Mo.) and Joni Ernst (R-Iowa) demurred from telling reporters how they'd vote on advancing the bill ahead of the vote.

Ultimately, the bill garnered enough support to pass the upper chamber easily.

Twelve Republicans joined Democrats to support the bill, including Romney, Ernst, and Sen. Rob Portman (R-Ohio).

Substantive Due Process

The Respect for Marriage Act is one of a series of bills passed in response to the Supreme Court’s (SCOTUS) decision in Dobbs v. Jackson Women’s Health Organization.

In that case, SCOTUS overturned the precedent set forth in Roe v. Wade, a 1973 case that ruled that the Constitution granted a right to abortion until the point of “viability,” a biological description for the point at which an infant is able to survive outside the womb. However, this standard is difficult to define and is contested even among biologists who support abortion.

Crucially, Roe v. Wade relied on a precedent set forth in an earlier case, Griswold v. Connecticut, which ruled that the Bill of Rights created “penumbras” of implicit rights. On these grounds, SCOTUS ruled in Griswold that states couldn’t prohibit the use, sale, or transportation of birth control products.

The same standard, relying heavily on the 14th Amendment’s “Equal Protection clause,” was developed into the concept of “substantive due process,” a legal principle that essentially enumerates rights not explicitly outlined in the Constitution.

The principle of substantive due process was used in a series of later cases, including Lawrence v. Texas—which overturned state anti-sodomy laws—and Obergefell v. Hodges.

Because of that, Democrats have expressed concerns that Dobbs is only the first step to undoing a series of other cases based on similar grounds.

Rep. Mike Levin (D-Calif.) said he cast his vote for the bill due to that concern.

“When SCOTUS overturned #RoeVWade, the conservative majority made clear it wants to reconsider the ruling that legalized same-sex marriage next,” Levin wrote in a Dec. 8 tweet. “That’s why I voted today to protect marriage equality and send the #RespectForMarriageAct to the President’s desk.”

Misrepresented

However, in the majority opinion in Dobbs, SCOTUS was explicit that no other 14th Amendment precedents were under attack (pdf).

“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the majority of the court, including Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh wrote.

In his concurring opinion, Justice Clarence Thomas did call for reconsideration of precedents such as Griswold and Obergefell that hinge on substantive due process in all future cases. However, the opinion was misrepresented to suggest that Thomas supported overturning these cases; in fact, Thomas expressed his agreement with the majority opinion that nothing in the opinion ought to cast doubt on the fate of these cases.

Still, Democrats responded to the outcome with a flurry of proposals, including the Respect for Marriage Act and the Women’s Health Protection Act, which would greatly expand on Roe’s standard for when abortions are permissible.

Levin’s office didn’t immediately respond to a request for comment.

This is a developing story that will be updated.