The House of Representatives on Thursday gave final approval to a landmark bill aimed at protecting same-sex and interracial marriage, sending the measure to President Joe Biden's desk for his signature.
The final vote on the Respect for Marriage Act was 258-169, with 39 Republicans joining all Democrats to pass the measure. One Republican member voted "present."
"What a great day," House Speaker Nancy Pelosi, D-Calif., said at an enrollment ceremony after the vote. "At last we have history in the making. But not only are we on the ride sight of history, we are on the right side of the future: expanding freedom in America."
Pelosi, who is stepping down from House Democratic leadership after two decades, wrote an op-ed for The Washington Post expressing pride that this bill will be one of the last she will sign as Speaker of the House.
"Just as I began my career fighting for LGBTQ communities, I am overjoyed that one of the final bills I will sign as speaker will be the Respect for Marriage Act: ensuring the federal government will never again stand in the way of marrying the person you love," she wrote.
President Biden, who is expected to sign the bill into law quickly, hailed the bill as a "critical step to ensure that Americans have the right to marry the person they love."
"After the uncertainty caused by the Supreme Court’s Dobbs decision, Congress has restored a measure of security to millions of marriages and families," Biden said in a statement. "They have also provided hope and dignity to millions of young people across this country who can grow up knowing that their government will recognize and respect the families they build."
"Together, we showed that it’s possible for Democrats and Republicans to come together to safeguard our most fundamental rights," Biden wrote, thanking the lawmakers who made the bill's passage possible. "While we are one step closer on our long journey to build a more perfect union, we must never stop fighting for full equality for LGBTQI+ Americans and all Americans."
At the ceremony, Wisconsin Sen. Tammy Baldwin, one of the bill's lead negotiators in the Senate and the first openly LGBT woman elected to the Senate, hailed the fact that lawmakers "defied political gravity" in order to pass the bill.
The ceremony also attracted former Rep. Barney Frank, who was one of the first openly gay members of Congress. Frank said that he was at the Capitol for the "birth" of the Defense of Marriage Act – the bill which defined marriage as the union between one man and one woman, which this new bill repealed – and joked that he is "very grateful to be able to be here for the funeral."
Frank went on to praise Baldwin for her steady guidance on the bill, noting that while she faced some criticism about not getting it done before the midterms last month, the Wisconsin Democrat recognized that resolving issues around the bill was "much more important than any political issue."
"She stood up and she was proven right, and I hope people will now take this as an example of responsible legislating, not being panicked by people who have more emotion than intelligence," the former Massachusetts Congressman said, calling Baldwin's shepherding of the bill "one of the great legislative achievements I've ever seen."
The move by lawmakers at the end of Congress' current term is the culmination in a decadeslong battle for federal recognition of same-sex and interracial unions, and serves as another rebuke to the Supreme Court in the aftermath of the ruling that overturned Roe v. Wade over the summer.
In a concurring opinion to that ruling, conservative Justice Clarence Thomas said that the high court "should reconsider" a number of key rulings, including Obergefell v. Hodges, the 2015 ruling which determined that the right for same-sex couples to marry is protected under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
"In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”
The Respect for Marriage Act has a two-pronged goal, according to the bipartisan group of senators that negotiated the bill; first, to require the federal government to recognize marriages by law should they be legal in the state in which they were performed, and to “guarantee that valid marriages between two individuals are given full faith and credit, regardless of the couple’s sex, race, ethnicity, or national origin.”
It also repeals the 1996 Defense of Marriage Act, which defined marriage as between one man and one woman, which was nullified by the ruling in Obergefell, but is still on the books.
The bill does not, however, require states to change their laws in order to issue marriage licenses. It also ensures that religious non-profits will not be required to facilitate marriages that go against their beliefs, and further makes clear “that the bill does not require or authorize the federal government to recognize polygamous marriages.”
The House of Representatives initially passed a version of the bill legalizing same-sex marriage in July, with 47 Republicans joining all present Democrats. Thursday's vote saw less Republican support, with some Republicans changing their vote from a "yes" to a "no," including Reps. Brian Mast, R-Fla., Mario Díaz-Balart, R-Fla., Scott Perry, R-Penn., and Maria Elvira Salazar, R-Fla.
One Republican lawmaker, Rep. Chip Roy of Texas – who voted against the bill both times – called the bill an "absolute abomination" as it relates to religious liberty.
"It's purposefully undermining religious liberty," Roy told Spectrum News, adding: "The 12 Senate Republicans who voted for it in the Senate are either stupid or deceitful."
On the other hand, Republican Reps. Mike Gallagher of Wisconsin and Jamie Herrera Beutler of Washington changed their votes from a "no" to a "yes" this time around, while retiring GOP Reps. Adam Kinzinger, R-Ill., and Lee Zeldin, R-N.Y., were not present for the vote Thursday.
Despite the widespread support over the summer, action on the bill stalled in the Senate, where some Republicans expressed concerns that the bill would, as written, infringe on the rights of religious groups and organizations that do not support same-sex marriage.
After months of negotiations on both sides of the aisle, the Senate passed their version of the bill last week in a 61-36 vote, which added an amendment aimed at protecting religious liberties. The initiative was spearheaded by Sen. Baldwin and Arizona Sen. Kyrsten Sinema, the first openly bisexual member of Congress, on the Democratic side, along with Republican Sens. Rob Portman, R-Ohio, Susan Collins, R-Maine, and Thom Tillis, R-N.C.
In mid-November, the bipartisan group of Senators introduced an amendment that, in part, ensure religious non-profits would not be required to facilitate marriages that go against their beliefs, and further makes clear “that the bill does not require or authorize the federal government to recognize polygamous marriages.”
Senators added clarifying language that would prevent the bill “from being used to diminish or repeal” any religious liberty provisions awarded in the Constitution or under federal law, and states that an organization’s tax-exempt status may not be altered under the bill, provided that status “does not arise from a marriage.”
While the Respect for Marriage Act is being hailed as historic legislation, Paul Schiff Berman, the Walter S. Cox Professor of Law at the George Washington University Law School cautions that this law doesn’t do anything at the moment as it’s written.
“Right now, the Obergefell case has been decided by the U.S. Supreme Court, and it locates the right to marry for gay people in the US Constitution. This statute does nothing about that," Schiff Berman told Spectrum News. "It only really matters if at some point in the future, the US Supreme Court, overturns that decision and returns the question of gay marriage to the states,” .
“It is protecting against a potential future U.S. Supreme Court decision that has not happened yet, and may never happen.”
The bill circulates around the Constitution’s “Full Faith and Credit clause,” which requires each state to give full faith and credit to judgments across state lines. The Respect for Marriage Act creates a mandate that states recognize the judgements across state lines.
“It has not historically applied to the ongoing status of people like their marital status, this statute would really extend the full faith and credit guarantee to the status of being married. So that if you're married in one place, you continue to have that marital status, even if you're in another state,” he explained. “The question is whether that goes farther than the Constitution requires, then presumably, one state might say that this statute is forcing them to recognize a merit, which they don't think is appropriate. And therefore it's an infringement on their state sovereignty.”
While Schiff Berman says the Supreme Court majority “took pains” to outline in the Dobbs decision that they were not considering Obergefell with their opinion, it’s not a big leap for scholars and Supreme Court enthusiasts alike to see the decision in potential jeopardy. “You can’t control how one precedent then applies in the next case and the next case.”
“If the Supreme Court really thinks all of these issues should be returned to the States, and overturns Obergefell, on those grounds, then it's also possible that the Supreme Court might see this federal statute as infringing on the traditional ability of states not only to choose whether to solemnize not as gay marriages, but also whether to recognize other states gay marriages,” Schiff Berman explained.
Spectrum News' Rachel Tillman, David Mendez and The Associated Press contributed to this report.