WASHINGTON — The House of Representatives on Tuesday passed a bill that would recognize same-sex marriage at the federal level, as 47 Republicans joined Democrats in supporting a measure in response to growing concerns that the conservative Supreme Court could overturn marriage equality.
The Respect for Marriage Act would codify federal protections for same-sex couples that were enacted in 2015 when the Supreme Court’s Obergefell v. Hodges established same-sex marriage as a right under the 14th Amendment. The legislation would repeal the Defense of Marriage Act of 1996, which defined marriage as a union between a man and a woman, a law that was struck down by Obergefell but remains on the books.
The legislation, which passed by a 267-157 vote, faces an uncertain future in the evenly divided Senate, where most Republicans opposed the gay rights measure. But Sen. Mitch McConnell, Republican of Kentucky and the minority leader, declined Tuesday to take a position on the measure.
House Democratic leaders chose to push ahead with the bill after a Supreme Court opinion last month striking down abortion rights suggested the justices may reconsider cases upholding same-sex marriage and contraception rights. The debate in Congress has turned the issue into the midterm election campaign, where Democrats are eager to distinguish between their party’s support for LGBTQ rights and opposition from many Republicans.
In the Senate, Majority Leader Chuck Schumer, D-New York, did not commit to raising the measure, but said he would “look at anything we can do to address these issues” after Dobbs’ decision.
“Let’s face it: This is a MAGA Supreme Court — a MAGA Supreme Court, a right-wing extremist Supreme Court — very, very far from the seat of not only the average American, but even the average Republican,” Mr. Schumer said.
Justice Samuel A. Alito Jr., who wrote the court’s decision in Dobbs v. Jackson Women’s Health Organization, said the decision should not be interpreted as affecting issues other than abortion. But in a concurring opinion, Justice Clarence Thomas made it clear that he thinks other landmark cases that rely on the 14th Amendment, as the nearly 50-year-old precedent Roe v. Wade did, should be revisited. And Justice Alito has previously suggested that Obergefell be reconsidered, arguing that it invented a right without a basis in the text of the Constitution.
The legislation would require the federal government to recognize a marriage if it is valid in the state where it took place, which would address the patchwork of different state laws. That would protect same-sex marriage in the 30 or so states that currently ban it if the court overturns Obergefell.
The bill would also provide additional legal protections to same-sex couples, such as giving the attorney general the power to take enforcement actions and ensuring that all states recognize public deeds, records and court proceedings for out-of-state marriages.
“Today, we are taking an important step toward protecting the many families and children who rely on the rights and privileges supported by the constitutional guarantee of marriage equality,” Rep. Jerrold Nadler, D-New York and chairman of the Judiciary Committee, said in a statement. “The Respect for Marriage Act will further add stability and security for these children and families.”
On Tuesday, the White House issued a statement supporting the bill, a version of which was co-authored by Sen. Susan Collins, R-Maine.
The House vote reflects a shift among Republicans on same-sex marriage, as polls show a majority of the party supports it. Although the overwhelming majority of House Republicans opposed the bill, GOP leaders did not formally instruct their members to vote no, according to two people familiar with the internal discussions, making the vote more a matter of personal conscience.
The small bloc of Republicans who supported the measure amounted to less than a quarter of the party’s conference, but it was a much larger share than gay rights legislation has historically received from GOP lawmakers. Only three Republicans voted last year for sweeping legislation that would ban discrimination based on sex, sexual orientation and gender identity.
Tim Lindberg, an assistant professor at the University of Minnesota Morris, said there is a shift in perception of LGBTQ rights across the country, and in particular same-sex marriage.
“There is no risk in supporting it, but there is a political liability if you go too far to the right,” Mr. Lindbergh said of same-sex marriage rights. “It’s no longer a measure of whether you’re a conservative.”
Last fall, Wyoming Republican Liz Cheney, a staunch conservative, abandoned her longtime opposition to same-sex marriage, saying, “I was wrong.” On Tuesday, Ms. Cheney, whose sister Mary Cheney is gay and married with children, voted to codify same-sex marriage protections.
Rep. Nicole Malliotakis of New York, another Republican who supported the bill, said in a statement that she still feels remorse for opposing same-sex marriage more than a decade ago as a state legislator.
“In 2017, I expressed my deep regret for voting against a bill to legalize same-sex marriage in New York State while in the State Assembly six years ago,” Ms. Maliotakis said. “Every legislator has votes they regret, and to this day that vote was one of the hardest I’ve had to take.”
Congresswoman Nancy Mays, a Republican from South Carolina who previously supported same-sex marriage, said she supported the measure because it was “constitutionally sound.”
“If it gives some peace of mind to ensure that the institution of marriage is protected, then I will vote for it,” Ms Mays said.
But most Republicans were against it. Rep. Jim Jordan of Ohio, the top Republican on the Judiciary Committee, said the measure was an attempt by Democrats to delegitimize the Supreme Court.
“We’re debating this bill today because it’s an election year,” Mr. Jordan said. “We’re here for political messages.”
Mr. Nadler argued that the legislation was a necessary response to Dobbs. Even if lawmakers accept Justice Alito’s contention that the ruling has no impact on other rights, he said, the legislation is a way for Congress to “provide further assurance that marriage equality is a matter of settled law.”
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