Respect for Marriage Act disrespects DOMA

Democrats and Republicans both thought that the Respect for Marriage Act wouldn’t get far. But following a House vote that raised eyebrows in and out of Congress, it’s clear the bill has support from unexpected sources.

In a move to shield same-sex marriage from future Supreme Court review, the House of Representatives passed H.R. 8404 in a 257-157 vote on July 19, carrying a surprising 47 Republican votes. The result leads political observers on both sides of the aisle to believe the bill might have a chance to pick up 10 Republican votes in an evenly divided Senate and become law. But perhaps more significantly, the bill offers many conservative representatives the chance to signal voters on their position of same-sex marriage.

The Respect for Marriage Act in its current form would repeal the 1996 Defense of Marriage Act (DOMA) and create a federal law protecting interracial marriages as well as same-sex marriage. Under its language, no state would be permitted to void the validity of a marriage on the basis of sex, race, ethnicity, or national origin.

The bill doesn’t create new federal provisions, but instead reinforces existing ones. The Court has previously ruled state-based discrimination against interracial marriages unconstitutional in 1967 and ruled similarly for same-sex marriage in 2015.

Since that 2015 decision in Obergefell v. Hodges, same-sex marriage has been a federally protected right that, unlike other key social issues like abortion, has gone largely unchallenged by conservatives in Congress. Republican congressional candidates don’t often make the issue a part of their campaign rhetoric. But in the wake of the Supreme Court’s reversal of Roe v. Wade, the topic has once again become a legislative matter as Democratic-leaning voters put pressure on Congress to pass a bill on the issue.

For instance, Emma Rolf—a gay woman and a self-described political independent from Virginia with a Democratic voting record—says it would be “a big red flag” to her if Congress ignored the issue. That voter concern stems from an observation made by Supreme Court Justice Clarence Thomas, that the same reasoning that overturned Roe v. Wade might also apply to Obergefell v. Hodges.

In his concurring opinion of Dobbs v. Jackson, Thomas criticizes the Supreme Court’s past application of “substantive due process” in deciding cases like Roe and Obergefell. The Supreme Court uses the principle of substantive due process to interpret the 14th Amendment’s provision that no state shall “deprive any person of life, liberty, or property, without due process of law.” Under this framework, the court has previously ruled that the right to privacy, the right to an abortion, and the right to marriage can all be extrapolated from the term “liberty” and are therefore constitutionally protected.

But, as Thomas’ criticism notes, the 14th Amendment doesn’t actually mention any of those rights.

“The resolution of this case is thus straightforward,” Thomas writes. “Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”

That same logic, says Thomas, could apply to Obergefell.

H.R. 8404 aims to secure the right to same-sex marriage before the Supreme Court has the chance to give Obergefell a second look. Passing the bill would keep federal protections in place, even if the Supreme Court decided to overturn its prior decision.

The bill’s passage in the House of Representatives leaves many traditionally conservative voters wondering why 47 Republicans voted for H.R. 8404?

In a political climate more focused on opposing President Joe Biden’s domestic agenda and addressing key policy issues before an election, Republican candidates, who have historically opposed same-sex marriage, are giving the issue a second look.

Observers might be tempted to believe that these 47 representatives used their vote to win over a more liberal demographic in the upcoming November midterm elections. And while that might be true in a handful of cases, voter data would indicate that’s not at the heart of the issue.

The vast majority of the 47 Republicans who voted for the bill don’t face serious campaign threats from Democrats. The average margin of victory for them in 2020 was 16.5 percent, and only 18 of the 47  won their seat with less than a 10-point margin. Less than half of them, 22, come from states that voted for Biden in 2020. While congressional redistricting introduces an element of uncertainty to the upcoming midterms, the change they bring isn’t substantial enough to suggest 2022 should be a radical departure from the results two years ago.

Nor can the vote be explained across the board by the absence of social-religious affiliations.

A Gallup Poll released in June of this year indicates that a new high of 71 percent of Americans support same-sex marriage—a significant jump from just 21 percent in 1996 at the time DOMA passed. But support is most notably absent from regular religious participants where 58 percent of respondents opposed the concept of same-sex marriage. But here too, the spread of the 47 Republicans goes against the trend.

All 47 Republican representatives professed a religious affiliation. According to the Pew Research Center, 19 identified as Catholic, 13 as Protestant, five as Mormon, and the remaining 10 were of Jewish, Orthodox, and nondenominational faiths. Together, they had a median age of 52.

While they may not face ideological opposition from Democrats or lack ties often associated with traditional conservatism, the Republican vote is perhaps better explained by changes within the party itself on an individual level.

One such candidate, Ken Calvert, has switched his position on same-sex marriage after a long and vocal stance against the issue. With 30 years of experience representing California’s 42nd Congressional District, Calvert has used his past opposition to draw support from a conservative-leaning voter base. He formerly voted for the Defense of Marriage Act in 1996. Now faced with a slightly different constituency and an openly gay opponent on the ballot, Calvert voted to overturn the law he helped put in place. He has stated that he would not support the overturn of Obergefell.

“It wasn’t always my position,” Calvert told the Los Angeles Times earlier this month. “It’s a different country than it was 30 years ago.”

Calvert isn’t the only one to have voted for the Defense of Marriage, who now voted for the Respect for Marriage Act. Of the six Republicans who voted for DOMA and are still in office today, three voted to implement the Respect for Marriage Act. Calvert is joined by fellow long-standing conservatives Mario Diaz-Balart from Florida and Fred Upton from Michigan.

After having passed in the House of Representatives, the bill will now be brought to the Senate for consideration where its reception is still uncertain.

Senate Minority Leader Mitch McConnell has not stated his support or opposition to H.R. 8404. His decision to oppose the bill would make it extremely unlikely to pass in the Senate.