House Passes Marriage Protection Bill
The symbolic vote attracted a handful of Republican votes.
The WaPo headline “House passes protection for same-sex, interracial marriages with bipartisan support” is rather misleading.
A bill that would federally protect same-sex marriages sailed through the House on Tuesday with bipartisan support, a historic moment that marks a capstone to the nation’s quarter-century evolution on LGBTQ rights and a response to fears that an emboldened Supreme Court was poised to take away hard-won civil rights.
Forty-seven Republicans joined all Democrats in support of the Respect for Marriage Act that also would protect interracial marriage and repeal the 1996 Defense of Marriage Act, which defines marriage as between one man and one woman. House Republican Conference Chairwoman Elise Stefanik (N.Y.) and National Republican Congressional Committee Chair Tom Emmer (Minn.) were among those who voted in support, a signal that at least a portion of the party believes marriage equality is settled law.
Tuesday’s bipartisan vote proves a striking evolution on the issue of same-sex marriage for members of both parties. Just a decade ago, Democratic Vice President Joe Biden got castigated for announcing his support for gay marriage before the sitting president, Barack Obama, had announced his own views on the issue. More than a decade before that, Biden helped pass the Defense of Marriage Act in the Senate, while House Majority Leader Steny H. Hoyer (D-Md.) and Majority Whip Jim Clyburn (D-S.C.) joined 116 Democrats supporting it in the House.
Now, on the cusp of seizing the majority of the House, Republicans split into competing camps over the onetime hot-button issue as Democrats were completely unified in protecting a right that the Supreme Court had issued seven years ago. Some of Trump’s fiercest allies voted with Democrats, particularly Stefanik.
Yet just more than 20 percent of the Republican conference voted in support of the legislation, a sign that even though marriage equality has become more broadly accepted across the country, Republicans don’t have a unified view on what some consider progressive social issues.
That “just more than 20 percent of the Republican conference voted in support of the legislation” does technically qualify as “bipartisan,” I suppose, but the obvious takeaway is that nearly 80 percent voted against or abstained.
Oh, and while we’re doing press criticism, President Obama had very much “announced his own views on the issue”—he had repeatedly opposed same-sex marriage, falling back on “civil unions” as a compromise, because he understood that the country—including most Black Democrats—wasn’t there yet. (He just as clearly personally thought same-sex couples should be free to marry.)
Now, clearly, part of the point of this vote was to force Republicans to go on the record opposing interracial marriage—which has near universal support—by coupling it with same-sex marriage, which remains extremely controversial in large swaths of the country.
My strong guess is that the bill is unnecessary, in that I don’t think there is more than one vote to overturn Loving v Virginia—–quite ironically, Clarence Thomas, who not only resides down the road from me in Northern Virginia but is himself in an interracial marriage—or more than three to overturn Obergefell v Hodges. Regardless, it’s a perfectly reasonable bit of legislation, clearly within Congress’ authority under Section 5 of the 14th Amendment.
It’s unclear if the legislation has enough support in the Senate for passage. And Democratic leaders didn’t commit to bringing it up for a vote, stating the legislative schedule ahead of the midterms may not allow for immediate consideration.
Politically, you’d think this would be a no-brainer for Schumer, but maybe there’s something I’m missing. Again, this is a very popular position that would be seen as “doing something” by a discouraged Democratic base and draws contrast with Republicans who vote against.
As a matter of public policy, it’s also a no-brainer. Racism still exists, obviously, but support for interracial marriage being legal has to be a 90-10 issue. I get that a whole lot of Americans think gay marriage is an abomination, whether for religious reasons or personal prejudice. But the horse is out of the barn. Obergefell was decided seven years ago and Massachusetts became the first state to legalize the practice in 2003. It would be not only evil but simply impractical to roll it back now.
It looks like no Representatives from New England voted against the bill. Yay!
@Argon:
They wouldn’t. Massachusedtts was the first state to legalize same-sex marriage.
New England Republicans are a lot different from southern ones. A lot.
@Argon:
Are there any R congress critters left in NE?
And Jews had been German citizens for decades or longer. It would have been not only evil but simply impractical to roll that back.
It forced them to address the critical flaw in their “logic” that’s causing them increasing worry – imposing extreme religious-based views on the public will cost them voters they can’t lose this election. Now, if this vote had been held in a non-election year, that 20% GOP would have been virtually zero. However, ever since Roe’s exposed how the nuts have utterly dominated the GOP’s active legislative agenda, some conservatives are having second thoughts. The case of the 10yr old from OH and their subsequent reaction (“it was a hoax!!” to “she should be forced to carry” to “maybe we need to not let women cross state lines just in case”) is freaking out their more moderate voters who suddenly realize that they would be governed by the extremes and not what they think is reasonable.
Most folks support interracial marriage so by pointing out that eliminating SSM would lead to getting rid of that makes sense. If legal marriage can be constrained by someone’s religious or racial views in one way, it absolutely can in another. In other words, not only that specific bigotry will apply and that’s causing a lot of concern. The fallout from these decisions too was never truly considered and now you’re getting a lot of logical consequences that upset the general public. The GOP won’t stop once it achieves the win you might agree with but everything on it’s agenda even the insane stuff they been saying for years they want.
Far, FAR too many voters thought they were getting just their own little W according to their personal beliefs, not rewriting the entirety of how America treats its citizens. Smarter politicians – or those in danger of losing their seats – are trying not to be Forest Gump running out the stadium with the football. Get the touchdown but keep playing the game, don’t do something to risk your win or get you kicked off the field.
I wouldn’t even say this implicates the 14th Amendment. Congress is specifically empowered by Article IV to prescribe via general laws how Full Faith and Credit functions. This would IMO be one of those instances.
[Edited for idiocy. James clearly wrote Loving and I read it as Obergefell. I agree with him that the Loving case is stronger, but I think there are at least three votes that would return it to the states. ]
I think you are being overly optimistic here. Look at a statement you made just a couple of paragraphs up above:
80% of elected Republicans believe it is more in their political interests to vote against gay and interracial marriage than to vote for it. 80%!
As for the court, the fact that you only think there is one vote tells me a couple of things. First, you don’t appreciate the extremism of Coney-Barrett’s Catholic sect. While Catholics as a whole are correctly perceived as moderates, there are some small sects that are truly off the rails. She is in one of them and was born into it and stayed. You also seriously underestimate the nature of Alito’s religious convictions. Within the past two years he has given at least one speech decrying how if “someone” says that marriage should be between one man and one woman, they are considered a bigot.
Interracial marriage is not “deeply rooted in this nations history and traditions.”
Gay marriage is not “deeply rooted in this nations history and traditions.”
Anti-miscegenation laws ARE “deeply rooted in this nations history and traditions.”
Anti-gay sex laws ARE “deeply rooted in this nations history and traditions.”
Anti-crossdressing laws ARE “deeply rooted in this nations history and traditions.”
The reason so many Republicans voted for this is they know it’s meaningless. Ted Cruz is openly advocating for SCOTUS to overturn Obergafell. If you think they won’t do it, you’re deluding yourself. Texas politicians are actively working to re-criminalize gay sex, if gay sex is illegal, why should they be allowed to marry? And if gay sex is illegal, why should a state have to give full faith and credit to a marriage where the marital intimacy is a crime?
You seem to think that the overall project isn’t to create a two tier system where white Christians are elevated over everyone else.
My marriage and my family are in danger.
@MarkedMan:
How is Loving any stronger than either Obergafell or Roe? They are all based on substantive due process which none of the Republicans on the court believe exists. Again, literal homophobia (the fear part) is deeply rooted in this nations history and traditions. The bigotry part too.
There is zero reason to believe that any of the substantive due process cases will survive. Alito is a liar and a bigot.
@Beth:
Because Clarence Thomas is in an interracial marriage. That’s why he didn’t mention Loving v Virginia in his verkakte opinion.
@Beth: I meant “stronger” only in the sense that there is a stronger majority of voters in favor. But as I mentioned, I think there are at least three justices and maybe more who would be willing to toss the precedents in both cases if they believe it would further their religious goals. They have made it clear that they consider that religious beliefs ha e primacy over almost anything else.
@Beth:
Race is a suspect class. Sexual orientation is not.
@Kathy:
And I wouldn’t even trust that. He’s the kind of entitled person to think he’d be special even if he reversed the legal precedent allowing him his present circumstances. Interracial marriage would be illegal for the plebs but no worries for Ginny – she’ll still be his missus.
*ANY* case that any conservative have even remotely sneered at in the last century is in danger. As I noted, the denial among the conservative-minded is strong – they think only their specific bigotry/”disapproval” will apply and no other case they think is “correctly decided” will fall. For god sake, there’s chatter about Brown vs Board of Education going down and there’s a frighteningly high chance it’s could go if challenged by this Court. What needs to be understand is precedent means nothing anymore, nor does internal logic or consequences; this is a political court aiming to achieve their agenda with no regard to what the public thinks. Being evil or impractical – extreme ideology reigns supreme and will be enforced by the majority. Thomas won’t go against the majority, even to theoretically save himself (that’s what privledge is for).
@Beth:
Loving was primarily an equal protection opinion, with a concluding paragraph that said, oh yeah, this also violates due process. I have no doubt that Clarence Thomas can write an opinion that says his marriage is constitutionally protected because of the equal protection clause even though all right-thinking people now agree that the substantive due process aspect of Loving was wrong.
If the issue ever came before the court, I think it’s likely that Thomas would get at least two other Justices to sign off on that opinion, and if I believed in Thomas’s theory of the Constitution I might even agree that this is a reasonable position to take. I don’t and it isn’t, but there’s enough there to give any of the right-wingers on the court who still care about appearances the cover needed to avoid the politically disastrous result of declaring that there’s no right to interracial marriage while still leaving open the option of declaring that there is no right to gay marriage.
@Beth: As @HarvardLaw92 notes, race is simply different than sexual orientation. The post-Civil War amendments were a “second founding” that radically changed with the Constitution says about race. Plessy v Ferguson was simply ignoring the plain meaning of the document.
Rather obviously, no one in the 1860s thought they were legalizing gay marriage. I’d argue that various federal laws could be interpreted to require equal treatment. But I’d prefer that we explicitly make it clear through legislation.
I disagree. I think it’s very necessary.
It’s different for SCOTUS to say “We’re going to ignore precedent” than it is to say “We’re going to rule this law unconstitutional”. Without this law, they can “toss it back to the states, because there’s no Federal law superseding”. With this law, they can’t. They have to actually strike down the law. With 20% of US marriages being interracial, and 94% approval, doing so would hurt GOP ability to get re-elected.
Thank you. I skimmed past that headline yesterday, realizing it signified nothing but not reacting to the mendacity of it. I just came back from leaving a critical comment at WAPO, where comments on that piece are still open. For whatever they’re worth.
@Mu Yixiao:
It also should be noted the biggest effect of this bill is repealing DOMA. SCOTUS can rule a law unconstitutional, but I’m not sure even the current extremists justices are ready to rule that the constitution requires a particular law to exist.
@KM: In a lot of the recent court cases over businesses or non-profits serving LGBTQ people, the “separate but equal” argument has been raised and the Republican justices have shown a willingness to allow it, or at least not objected to it. For example, in a recent adoption case the argument was made that there are other agencies that screen for adoption that don’t discriminate against LGBTQ and so the plaintiffs could just go there. The Republican justice raised no objection to this as a concept.
@James Joyner:
I don’t think this is a fair reading. The Jim Crow states contended that they were providing services to all races in a equal fashion, albeit separately, and therefore their laws were constitutional. It was not and is not clear cut that separate but equal is inherently unconstitutional. As I state above, this argument is being raised in religious rights cases without objection from Republican judges
@James Joyner:
Says who? Supreme Court precedent? Ha. We know how that story goes.
There’s no reason for queer folk (or women or people of color) to trust the Supreme Court’s dishonest radical right extremists.
@James Joyner: “Rather obviously, no one in the 1860s thought they were legalizing gay marriage.”
I don’t think they thought they were legalizing interracial marriage, either…
@James Joyner:
Also James Joyner:
So we shouldn’t be doing this through the courts because it’s the legislature’s job, but we also shouldn’t be doing it through the legislature either. And in either case, it’s not his family on the hook here so he’s content to just wait around doing nothing.
What began as a comment grew into a post. So I’d love folks comments about this:
https://www.outsidethebeltway.com/the-respect-for-marriage-act-versus-the-filibuster/
@Stormy Dragon:
Are you being deliberately obtuse?
Clearly, he was saying that he didn’t think the SC would overturn Obergfell, much less Loving and so the bill would not be necessary to secure the rights that the bill would secure, which you would have seen had you finished reading the rest of the sentence you quoted
Also, he explicitly endorses this bill both because of his long-standing belief that these rights be codified by legislation and that it would be an ‘abomination’ to reverse either of these rights.
Do you just look for bits to cherry-pick to make a fight where none should exist? You disagree with him enough without manufacturing disagreement.
I would normally take the position that the threats to SSM, birth control and interracial marriage were hyped, since they represent “settled law”. One could understand the extreme bills introduced as playing to the base with no expectation of ever enacting such laws. Which is how I understood how the Republicans were playing the Supreme Court nominations. It was clear, and I recall saying so, that someone was being lied to.
However, at the very least, both Gorsuch and Kavanaugh lied under oath about what they thought constituted “settled law”. So I’m no longer willing to take the good intentions of any Republican for granted. I’m instead going to take them at their word – that they want these things and will work for them.
They made this bed.
Big optimistic guess here:
It’s possible there may be enough support, or benign indifference, from Republican senators to pass the bill, were it not that some of those who’d support it would lose reelection if they did. Schumer wouldn’t care to keep any of them in the Senate, but he’d care about the bill dying.
For once, this guess can be tested. Schumer could bring it up after the midterms, however they trun out, and voted before the next Congress opens (I assume).
@Stormy Dragon:
Well, at least not so far. Check back in about 1o or 12 years.
@Grewgills: I’ll just note in passing that I think that Dr. Joyner is incorrect in his suppositions regarding Loving and what the Supremes are incapable/capable of believing and acting upon. I also take the position that the Democrats in the House are as skeptical as I am, but I suppose the bill could be just fan service theater. Either way, if GQPs in the House thought that the bill could make it through the Senate, Stefanik and the other 5th of the GQP caucus would not have supported it.
Either way, Senate Democratic action or inaction on the bill IS a no-brainer, just not in the way Dr. Joyner imagines. The Democrats have enough symbolic (in the sense of revealing who the GQP are) losses on the books for this session, they don’t need additional.
@Kathy: “Schumer could bring it up after the midterms, however they trun out, and voted before the next Congress opens (I assume).”
Nothing the Democrats would be interested in passing will be acted upon after November 8th unless the makeup of the Senate is substantially unchanged. Bipartisans Manchin and Sinema will see to that. I don’t see Democratic Party control of either house as a likely scenario. It might be nice to have that happen, but it won’t.
@HarvardLaw92:
@James Joyner:
The only reason that race is considered a suspect class is because Straight people think that being Gay (and Bi, and Trans) is a choice. That’s it. Please believe me when I say I’m not trying to be pejorative here, but you are (to my understanding,) both older, Straight men of a more conservative persuasion. How many times in your lives have you thought that it’s all just a choice. I’ve known I was Bi since I was about 14, and probably younger than that honestly. I didn’t choose to be Bi anymore than I chose to be White. The only choice I made was to not hate myself because of it.
I just want to join the bandwagon here.
We see the Republican attacks on queer folks of all stripes every day. “Groomers” anyone? Florida’s “don’t say gay” bill? Even if there aren’t the votes for a full repeal of Oberfell (a dubious claim, given the respect for precedent and just plain lying during confirmation), Republican states will keep trying to test it, and chip away at it.
@Beth: Race is explicitly mentioned in the constitution, due to the civil war amendments. Sexual orientation is not.
@Just nutha ignint cracker:
Fuck that, bring it to a vote. Democrats need to be seen as fighting the Republicans, and right now they are seen as fighting themselves.
Plus, 20% of the Republicans in the House supported this. If that ratio holds in the Senate, it might even pass.
Look, this all comes down to trust.
Does you trust this iteration of the GOP and SCOTUS to respect “settled law”, follow longstanding legal principles and to keep their personal politics out of decisions?
Or even more simply: Do you trust the GOP and SCOTUS’ intentions?
If the answer isn’t a solid, resounding Yes then this law is necessary. Any obstacle to prevent them from screwing America over needs to be tossed in their path. All efforts to protect rights need to be enacted. There’s no kill like overkill and if it ends up being unnecessary, good. You build failsafes knowing you may never need them but will be grateful AF when you do. It hurts nothing to have rights protected by more then a Court ruling and it reinforces that Congress *must* do its job.
At this point, it takes a foolish confidence to trust they will not overturn things that are “settled” if they want. Fool me once, shame on you. Fool me twice and it’s because I didn’t learn my lesson.
You know, I just pulled up the 14th Amendment text and did a search, and the word “race” doesn’t appear. It doesn’t appear in the 13th Amendment, either. The Constitution mentions slaves, quite a bit, but not race.
It’s relevant, I’m not saying it isn’t. But they wrote those Amendments in very general language, from which one might infer that they thought there might be some other ways in which it could be interpreted.
@Sleeping Dog:
.
A few, but many all claim to be ‘very concerned’ about stuff, just like Senator Collins… Not concerned enough to participate on the Jan 6th committee however.
Note that while Massachusetts may have been the first state with legal same sex marriage, New York, a state that enacted it through legislation had a number of US reps voting against this bill…
@Gustopher: Maybe I’m being too cynical, but my take is still that if Republicans in the House had been at all persuaded that this bill would make it through the Senate, there would have been no support. Elise Sefanik’s support of it as House Republican Conference Chair is particularly telling on this point. She’s not deciding her vote on some deeply held democratic, liberty-enabling position. (And the fact that she probably doesn’t have a principled bone in her body doesn’t help any, either.)
She’s got her vote in favor on record (it’s a freebie that means nothing substantive). The fact the Democrats in the Senate can’t manage to get support for the bill is not her fault or problem. It’s a win-win. I’d do the same myself. (Which, again, is why electing crackers to office is a bad idea.)
Possibly of note:
There are five states* which have “split seats” in the Senate. In three of those, the Republican is up for election (Johnson WI) or the seat is open (Portman OH, Toomey PA). 270towin considers all three of those to be “toss-up” states.
Would that influence the Republican candidates one way or the other?
@Just nutha ignint cracker: All of that just seems like more reason to bring it to a vote.
It’s popular. Make Republicans vote against unpopular things where Democrats are united in favor.
We should be doing this with abortion as well — first term, then well defined health of mother, etc.
Some might get through. Otherwise it paints the Republicans as the extremists they are.
And it’s not like the Senate is doing much else.
@Beth:
Legitimately I don’t agree with the split situation, as they are both IMO immutable characteristics equally deserving of protection, but the state of the law is what it is.
@Gustopher: I don’t see making the GQP own the bad things they stand for as a winning approach. Then again, I also see humanity in general as more GQP-esque than advocating for the rights of others and admit that I may be too cynical. It’s certainly possible that the nation is just stuck with two or three bad generations and then everything will be great again. In any event, I’m deciding nothing, so go wherever your muse leads you, by all means.
@HarvardLaw92:
This speaks to the importance of getting legislative action and definition on extending those protections.
It seems to me that Congress could pass a law saying that no state can restrict or punish travel to another state for purposes of any medical procedure (which would include abortion). This seems to me to be covered both by Full Faith and Credit as well as interstate commerce.
So here’s where my political judgement isn’t very good. Why aren’t they doing that? Because it wouldn’t pass the Senate? Because they fear it would mobilize the opposition? What’s up?
@Jay L Gischer: I suspect they’re doing some “starter legislation” with the gay marriage bill. If you pass that, you establish that you’re doing something, which is a play to the people who are (legitimately, I think) worried about other rights being stripped. You also codify that rights in one state propagate to every other state.
But any bill involving abortion at the federal level is going to become a hotbed of right-wing fearmongering, even if it’s just establishing what 90% of people already think about interstate activity. Bringing an abortion rights bill and not being able to move it would feel like a big loss.
This all just feels like the path of least resistance and maximum value given the realities of a 50-50 Senate and a sufficiently large House advantage.
@Jay L Gischer:
I think a bill doing just that failed to clear the 60-vote super-majority in the Senate (not calling it the filibuster anymore).
@HarvardLaw92:
This phrase is a shapeless, formless amoeba with no meaning. “It is what it is” and “It’s simply diffferent.” That’s the law they’re teaching on the East Coast? Lol. No wonder the Supreme Court is just making stuff up.
It is what it is till they say it’s not, it’s simply different till they say otherwise, it’s settled law till protests hurt Kavanaugh’s feelings. Pfft!
With the Republican Party and Republican justices in the grips of radical right extremism and Great Replacement Theory white supremacy, Americans have no reason to trust our liberty, privacy, and rights are safe. Certainly not based vague, toothless reassurances. No matter who we’re married to.
@MarkedMan: I think private discrimination and discrimination under law are wildly different things legally.
@Stormy Dragon:
I think it unnecessary as a matter of practice because I don’t think interracial or same-sex marriage are actually threatened. I explicitly support nonetheless codifying these things in law as a matter of principle.
Are all incorporated rights incorporated under substantive due process?