Marry Me (A Little)

The House passed the Respect for Marriage Act on Tuesday, voting to repeal the Defense of Marriage Act more than two-and-a-half decades after the House originally passed it. But: Will the Senate act?

On Tuesday, the House of Representatives passed the Respect for Marriage Act overwhelmingly, with support from every Democrat and almost one-quarter of the Republican caucus.

The bill (text here) formally repeals the Defense of Marriage Act (DOMA); requires the federal government to recognize all marriages that are legal in the state where they were entered into (or, notably, were legal when entered into); and bans states from discriminating in marriage recognition on several bases, including “sex, race, ethnicity, or national origin.”

The bill does much to protect same-sex couples as fears of the Supreme Court reversing its 2015 marriage equality decision persist in the wake of June’s decision overturning Roe v. Wade — encouraged by Justice Clarence Thomas’s statement that the court should do just that.

The bill does not, however, require states to allow same-sex couples to marry, one of the key results of that 2015 decision, Obergefell v. Hodges.

The 267-157 RMA vote presented an almost mirror image of the 1996 House vote passing DOMA.

• DOMA July 12, 1996, House vote:

  • Democrats: 118-65

  • Republicans: 224-1

• RMA July 19, 2022, House vote:

  • Democrats: 220-0

  • Republicans: 47-157

For an extensive historical review of DOMA’s passage, check out my 2015 BuzzFeedNews story, reported in the context of the 2016 election.

One of the nine of out LGBTQ members of the House, Rep. Ritchie Torres — one of the only two out gay Black men to serve in Congress — oversaw the historic vote to repeal DOMA and protect marriage equality. He called it “an honor” to be able to preside over the vote on Twitter. (Torres has drawn opposition from the left for several of his moves before and since his election to Congress, but someone clearly wanted to give him A Moment™️ on Tuesday.)

The House passage followed a Statement of Administration Policy issued earlier Tuesday “strongly support[ing] passage” of the RMA — another sign of the changed times on the issue. In 1996, when DOMA was under consideration, then-President Bill Clinton’s administration announced he would sign the discriminatory bill before either chamber even voted on the bill.

In Biden’s statement, the administration explicitly referred to two of the RMA’s aims — repealing DOMA and protecting federal recognition — while only implicitly referencing the interstate recognition provision in concluding that the bill would “ensure that the promise of equality is not denied to families across the country.”

Right now, Obergefell means no state can enforce a ban same-sex couples from marrying. And, for its part, Loving v. Virginia means no state can enforce a ban interracial marriage. But, as we’ve seen with Dobbs v. Jackson Women’s Health Organization and the end of Roe, states often allow these “zombie” laws — bans that existed before the Supreme Court rulings blocking their enforcement — to stay on the books. If Obergefell or Loving were to be overturned, some states likely would argue that their bans go back into effect.

At that point, Sections 1738C(a)(1) and (a)(2), as amended by the RMA, certainly would protect married couples from discrimination if they live in or move into states that ban their marriages, but the RMA would do nothing to allow new couples to marry in those states that wish to ban those marriages.

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DICK DURBIN’S DOUBTS: The Respect for Marriage Act passed the House with overwhelming support. A similar vote in the Senate — support from all of the Democrats and one-quarter of the Republicans — would overcome any filibuster, sending the bill to President Biden to be signed into law.

But, already, Senate Judiciary Committee Chair Dick Durbin has questioned the chances of the bill moving in the Senate, saying, “We have more priorities than we have time.”

Igor Bobic @igorbobic

Durbin says it will be tough to schedule votes in the Senate on bills protecting gay marriage, contraception given the packed calendar. "We have more priorities than we have time," he says

Durbin is one of the dwindling numbers of people serving in Congress when the Defense of Marriage Act was passed. He was one of the 118 Democrats who voted yes to pass the discriminatory bill. He was running for the Senate at the time, for then Sen. Paul Simon’s seat. (Simon was one of the 14 senators, all Democrats, to vote no when the bill came to a vote in the upper chamber in September. Illinois’s other senator, Sen. Carol Moseley-Braun, also voted no.)

Durbin did not, per Bobic, rule out cancelling part of the Senate’s planned August recess — a move that would give the Senate more time to pursue more priorities.

Some Democratic senators, meanwhile, are already pressing for Senate consideration and passage — including the chamber’s first out LGBTQ member, Sen. Tammy Baldwin.

Elizabeth Warren @SenWarren

Americans should be able to marry who they want and who they love. But right-wing extremists are already plotting to strip away this fundamental right. The U.S. House voted today to protect this right from this radical Supreme Court. Now, the Senate should do its part.

Brian Schatz @brianschatz

Protecting the right of gay marriage and interracial marriage is essential. Even though this is settled law, so was Roe, so we must take nothing for granted. The House passed a bill to codify these rights, preventing SCOTUS from taking them away, and the Senate should follow.

Reverend Raphael Warnock @ReverendWarnock

Glad the Respect for Marriage Act passed the House with bipartisan support. Now, my colleagues in the Senate have the chance to protect rights of same-sex and interracial couples. Some things are bigger than partisan politics. Let’s prove love is one of those things 🏳️‍🌈

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JIM JORDAN SPOKE: In opposing the Respect for Marriage Act on Tuesday, Rep. Jim Jordan of Ohio got upset when House Speaker Nancy Pelosi said that the Republicans knew DOMA was unconstitutional back in 1996.

“The Speaker of the House just said, ‘Republicans knew Defense of Marriage Act was unconstitutional when they passed it.’ Did the 118 Democrats who voted for that legislation know the same thing? Did the President of the United States — President Clinton — when he signed it into law, did he know it was unconstitutional?” he said.

“I’ve heard some ridiculous things said on the House floor in my time here in the United States Congress, but that one …”

Of course, Jordan has no clue what he’s talking about. There were many people saying that it was unconstitutional at the time — even though Clinton’s DOJ stated, in a conclusory memo, that it would be constitutional. As Sen. Edward Kennedy noted on the Senate floor during the DOMA debate, however, “leading scholars have labeled this bill flatly unconstitutional.”

Pelosi, as one of the 65 Democrats to vote no in the House in 1996,

¹

does knows that history.

Jordan wouldn’t join Congress for another decade.

For my part, I was a college sophomore in DC when Clinton signed DOMA into law, and I had no idea how it could be constitutional. But, then again, Jim Jordan and I rarely agree.

1. This number of 1996 House Democratic “no” votes on DOMA has been corrected here.