Last Tuesday, the House of Representatives passed the Respect for Marriage Act, a bill that would codify in federal law the right to same-sex marriage, repeal the 1996 Defense of Marriage Act, and require states to recognize same-sex marriages performed elsewhere.
The bill passed the House by a sweeping 267-to-157-vote margin, with 47 Republicans joining all Democrats in support. While same-sex marriage was already established as a constitutional right by the Supreme Court in the landmark 2015 case Obergefell v. Hodges, federal laws overturned by the ruling that define marriage as a union between one man and one woman have never been formally repealed. In repealing DOMA and including same-sex unions in the federal definition of marriage, the Respect for Marriage Act would essentially codify the Obergefell decision into federal law. And while it would have no practical effect as long as Obergefell stands as the law of the land, in the event the court were to “reconsider” its ruling, as Justice Clarence Thomas has argued, the bill would circumvent efforts by states to revert marriage back to its traditional definition.
Of course, the Respect for Marriage Act still needs to pass the Senate, which is widely loathed among progressives for stalling key aspects of their agenda, a result of the body’s 60-vote supermajority threshold required to pass most legislation. Since Democrats and Republicans are evenly split in the upper chamber, with Vice President Kamala Harris breaking ties, that effectively means most bills require the support of 10 GOP senators to pass. But while Democrats have not yet scheduled a vote on the Respect for Marriage Act, there’s significant support for same-sex marriage among Senate Republicans, and early indications of the bill’s chances of passing are promising. And with President Joe Biden eager to sign the bill if and when it reaches his desk, it appears that same-sex marriage is on track to be codified into federal law if it can just get a Senate vote.
But the Respect for Marriage Act is just one example of Democrats’ new strategy to “codify” rights established by the Supreme Court that have never been explicitly affirmed in federal law. Earlier this month, in the wake of the Supreme Court’s June decision to overturn Roe v. Wade and return the ability to restrict abortion to the states, the House passed a similar “codification” bill to protect access to abortion. If enacted, the bill, called the Women’s Health Protection Act, would codify the rescinded Roe decision, which guaranteed unrestricted elective abortion through the first trimester of pregnancy as a constitutional right while placing strict limits on abortion restrictions at later stages in pregnancy, into federal law. However, unlike the Respect for Marriage Act, the bill has no path forward in the Senate, where it doesn’t even have the support of all Democrats.
Still, Democrats saw a win-win situation in the Women’s Health Protection Act, just like they see in the Respect for Marriage Act, and the Right to Contraception Act — a bill passed by the House on Thursday, largely along party lines, that would codify the Supreme Court’s rulings establishing access to contraception as a constitutional right.
In Democrats’ view, there’s no downside to holding floor votes on “codification” bills even if they have no chance of passing the Senate. In the event that a codification bill passes, it goes a long way toward achieving the party’s enduring goal of affirming in federal statute civil rights established by the courts. And even if it fails, it forces elected Republicans to take a position on a contentious issue that Democrats believe voters will remember.
As Democrats struggle to balance perilous midterm election prospects with the fact that much of their legislative agenda, from Build Back Better and immigration reform to an assault weapons ban and a sweeping elections bill, is indefinitely stalled in Congress, they’re keen to take any political wins that they can get. So, it’s of little consequence to Democrats that long-standing, widely popular, and largely uncontroversial Supreme Court rulings in cases such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell, despite the lonely opinions of a single justice, are not under serious threat of being reversed.
Their new “codification” strategy is about politics. And with about 100 days remaining until the midterm elections on Nov. 8, we won’t have to wait very long to see if their new strategy bears fruit with voters.
