By Gary Bai
July 19, 2022
The U.S. House of Representatives has passed a bill to codify same-sex marriage into law.
The Democrat-controlled lower house passed the Respect for Marriage Act (H.R. 8404), a bill that codifies same-sex marriage into U.S. law, with a bipartisan 267–157 vote; 47 House Republicans backed the bill. The bill now heads to the Senate, where 10 Republican votes are needed to overcome the filibuster threshold.
“Specifically, the bill repeals and replaces provisions that define, for purposes of federal law, marriage as between a man and a woman and spouse as a person of the opposite sex with provisions that recognize any marriage that is valid under state law,” reads the bill’s summary on Congress’s website.
“The bill also repeals and replaces provisions that do not require states to recognize same-sex marriages from other states with provisions that prohibit the denial of full faith and credit or any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity, or national origin,” the bill’s summary continued.
House Judiciary Committee Chairman Rep. Jerry Nadler (D-N.Y.) introduced the bill on July 18.
The passage of the bill came a month after the Supreme Court ruled on Dobbs v. Jackson Women’s Health Organization, a decision that overturned the 1981 landmark abortion decision, Roe v. Wade.
The highest court opined in Dobbs that decisions affected by the Due Process Clause of the 14th Amendment should be “reconsidered.”
In his concurring opinion to Dobbs’s majority ruling, Justice Clarence Thomas said that “‘substantive due process’ is an oxymoron that lack[s] any basis in the Constitution” and that “the Due Process Clause does not secure any substantive rights.”
For this reason, Thomas said that “in future cases, [the justices] should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” and that “because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
Nadler takes the position that same-sex marriage is a “fundamental right” that was targeted by the Supreme Court.
“Three weeks ago, a conservative majority on the Supreme Court not only repealed Roe v. Wade and walked back 50 years of precedent, it signaled that other rights, like the right to same-sex marriage, are next on the chopping block,” said Nadler in a July 18 press release.
“As this Court may take aim at other fundamental rights, we cannot sit idly by as the hard-earned gains of the Equality movement are systematically eroded. If Justice Thomas’s concurrence teaches anything it’s that we cannot let your guard down or the rights and freedoms that we have come to cherish will vanish into a cloud of radical ideology and dubious legal reasoning,” Nadler continued.
Over the last weekend, Sen. Ted Cruz (R-Texas) publicly reaffirmed his stance that policies on issues such as gay marriage and abortion should be left to state legislatures to shape.
Cruz previously voiced opposition to Obergefell v. Hodges (pdf), the 2015 Supreme Court decision in which the 5–4 majority ruled that the Due Process Clause and the Equal Protection Clause of the 14th Amendment guarantee the fundamental right to marry to same-sex couples.
“Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” Cruz told podcast Verdict+. “In Obergefell, the court said, ‘no, we know better than you guys do,’ and now every state must sanction and permit gay marriage. I think that decision was clearly wrong when it was decided. It was the court overreaching.”
“And had the court not rolled Obergefell, the democratic process would continue to operate: that if you believe that gay marriage was a good idea, the way the Constitution is set up for you to advance that position is to convince your fellow citizens. And if you succeeded in convincing your fellow citizens, then your state would change the laws to reflect those views,” the senator added.