Congress to Codify Marriage Equality for Same-Sex Couples

Another step forward to prevent another step back. Photo: Ievgen Chabanov/Alamy Stock Photo

Acceptance of same-sex marriage has come a long way in the seven years since the U.S. Supreme Court made marriage equality a federal constitutional right in Obergefell v. Hodges. On Wednesday, the U.S. Senate reached a filibusterproof majority in a test vote for legislation codifying Obergefell in case the Supreme Court changes its mind:

In the final vote, two more Republicans, Joni Ernst and Todd Young, voted to advance the legislation, making the final count 62-37, which means the bill cannot successfully be filibustered. The Respect for Marriage Act already passed the House, so soon it will be on its way to President Biden for signature, giving him an early accomplishment in the 2022 lame-duck session.

Was this legislative step necessary? Nobody really knows for sure, so it definitely doesn’t hurt. Three of the dissenters in Obergefell (Justices Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) are still on the Supreme Court, along with three more recently confirmed conservatives whose precise views on the issue aren’t known (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). And indeed, Thomas, in a concurring opinion in the Court’s shocking Dobbs decision overturning 49 years of precedent on abortion, suggested Obergefell might soon fall as well.

But no one joined Thomas, and as Jay Michaelson explained in New York, the very precise test for overruling big precedents set out by Alito in the Dobbs majority decision seemed to protect Obergefell.

Still, it’s quite appropriate to be safe rather than sorry when it comes to this Court. The Respect for Marriage Act will keep states from banning same-sex marriage in the event that Obergefell is reversed. Beyond that, the House and Senate votes on the law provided a good indicator of how many Republicans were ready to move on from a losing culture-war issue by accepting marriage equality. Forty-seven House Republicans joined all 220 Democrats in voting for the legislation, as did 12 Senate Republicans (joining all 50 Democrats). This shift in what used to be solid GOP support for bans on same-sex marriage reflects a similar shift in public opinion. Just this week, the Pew Research Center published findings that 61 percent of Americans believe the legalization of same-sex marriage has been “good for society,” with just 37 percent disagreeing. Certainly many conservative religious leaders disagree, along with the Republican politicians who salute and take their orders on cultural issues (e.g., Senate Minority Leader Mitch McConnell and multiple potential presidential candidates voted “no”). Still, however slowly, the country is moving on.