Marriage equality wasn’t supposed to be one of Congress’ legislative priorities this year. After all, it’s been seven years since the U.S. Supreme Court issued its landmark Obergefell v. Hodges ruling, at which point the larger debate came to an end.
Or so we thought.
Justice Clarence Thomas wrote a concurring opinion last month in which he said the marriage equality ruling, among others, was “demonstrably erroneous” and should be “reconsidered.” Two Republican state parties approved new policy platforms denouncing same-sex marriage. Sen. Ted Cruz used his podcast to insist the Supreme Court’s Obergefell ruling was “clearly wrong.”
And so, House Democrats decided it was time to protect a civil right that wasn’t supposed to be in jeopardy. NBC News reported:
The House passed the Respect For Marriage Act Tuesday to codify legal same-sex marriage nationwide, fearing that the conservative majority on the Supreme Court will rescind the right after it overturned Roe v. Wade last month.... The bill would repeal the Defense of Marriage Act of 1996, enshrine legal same-sex marriage for the purposes of federal law, and add legal protections for married couples of the same sex.
The final outcome was not close: The Respect For Marriage Act passed 267 to 157. Ahead of the vote, Republican leaders did not whip their members — that is, they did not give any partisan instructions about how lawmakers should vote — which made it easier for 47 GOP representatives to vote with a unanimous Democratic majority.
As a matter of Legislative Tactics 101, parties often look for issues that unite their members while dividing their opponents. Yesterday offered a classic example of the phenomenon: Every Democrat endorsed the Respect For Marriage Act, while Republicans were split. Even the GOP leadership was divided: Of the top four Republicans in the chamber, two voted for the bill, while two voted against it.
In the Bush/Cheney era, marriage equality was a wedge issue for the GOP. As it turns out, it’s still a wedge issue, but now it’s Democrats who are using it to their advantage.
For civil rights proponents, there’s room for debate about whether the 47 Republican votes represents good news or bad. On the one hand, nearly four dozen Republicans broke ranks, ignored the wishes of the party’s socially conservative base, and voted to codify marriage equality in federal law. For a party that was prepared to literally amend the U.S. Constitution to prohibit marriage equality in the not-too-distant past, this could — and perhaps should — be seen as significant progress.
On the other hand, it’s 2022, marriage equality has been widely embraced by the American mainstream, and roughly three-quarters of the House Republican conference still, even now, can’t bring itself to vote for a measure that would protect a basic American freedom.
Indeed, away from Capitol Hill, a majority of GOP voters support marriage equality. And yet, in the House of Representatives, congressional Republicans voted no anyway.
The bill now heads to the Senate where it will, of course, face a Republican filibuster. It’s tough to predict with confidence what the outcome might be, though final passage is at least possible: A fourth of the House GOP voted for the legislation, and if a similar proportion of Senate Republicans support it in the upper chamber, that would create a filibuster-proof majority.
As a strategic matter, it’s a political dynamic Democrats could exploit either way: If the bill passes, the party will have another bipartisan election-year victory. If Republicans derail it, this becomes another election-year example of the GOP being far from the American mainstream.