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Analysis: Will the House-Passed, Bipartisan Codification of Same-Sex Marriage Become Law?

On Tuesday, the Democrat-controlled House of Representatives passed a bill that would effectively codify same-sex marriage in the United States.  Isn't SSM already the law of the land?  Yes.  Following the Supreme Court's Obergefell decision in 2015, same-sex couples' ability to legally to marry was determined to be a constitutional right.  It has been binding law ever since.  But in the aftermath of Roe v. Wade being overturned, many progressives have warned that other rights -- like this one, or the ability to access contraception -- could be in jeopardy.  I've written about why I believe those fears are hugely overblown, explaining my reasoning in detail.  In short, I'm confident there are not five votes in favor of uprooting Obergefell on this Court, and I'm not convinced there would be four votes to even accept such a case.  The majority opinion in Dobbs went out of its way to tamp down this concern, and SCOTUS recently expanded LGBT rights in a 6-3 opinion authored by Justice Gorsuch, a conservative.

In any case, what the Court has done in Dobbs (and other rulings, on other issues) is tell lawmakers to do their literal jobs and, well, make laws.  The legislative branch increasingly seems eager to abdicate its responsibilities to the rapacious executive branch, or the courts.  SCOTUS is exhorting legislators to legislate.  And thus, as a 'back-up plan,' in the unlikely event of Obergefell falling, the House has passed a bill that enshrines same-sex marriage.  As I noted after the vote, GOP leadership in the lower chamber did not whip the vote in either direction (it was a pure vote-your-conscience proposition), and nearly 50 House Republicans joined all Democrats to secure convincing, bipartisan passage:


A member of GOP leadership, Elise Stefanik, voted in favor of the legislation, as did NRCC Chairman Tom Emmer.  Of course, polling does not determine the righteousness or wisdom of any policy, but public opinion does matter in shaping our laws.  And same-sex marriage has evolved from widely unpopular, to deeply polarizing, to widely supported in a matter of a few decades.  The latest numbers from Gallup:

Seventy-one percent of Americans say they support legal same-sex marriage, which exceeds the previous high of 70% recorded in 2021 by one percentage point. When Gallup first polled about same-sex marriage in 1996, barely a quarter of the public (27%) supported legalizing such unions. It would take another 15 years, until 2011, for support to reach the majority level. Then in 2015, just one month before the U.S. Supreme Court's Obergefell v. Hodges decision, public support for legalizing gay marriage cracked the 60% level, and last year it reached the 70% mark for the first time.

In the 2021 survey, 55 percent of self-described Republicans signaled support for SSM, a majority. Only about one-fourth of the House GOP conference voted for this week's measure, representing an enduring gap between voter sentiment and lawmaker action, but 47 Republican votes is nevertheless a substantial, non-fringe number.  Will this (welcome but redundant, in my view) bill make it to President Biden's desk?  That depends on whether Senate Republicans will try to block it from consideration.  An up-or-down upper chamber vote would result in majority passage, as several Republicans are on the record in favor of the legislation, along with all 50 Senate Democrats.  But is there sufficient support to clear the crucial 60-vote Senate threshold?  Maybe:


I've been ticking through a mental list of Senate Republicans and came up with about a dozen names that could conceivably help achieve cloture (60 votes) and potentially also vote in favor of the bill itself.  My guess is that if there are ten or more GOP votes in the offing, that roster would look similar to the coalition that advanced and passed the post-Uvalde bill on mental health, school safety, and guns.  Approximately one-in-four House Republicans voted for the marriage bill.  Only one-in-five Senate Republicans would need to do the same to hit the magic number.  One important factor that has been largely overlooked is how reasonable and moderate this piece of legislation actually is.  Here's a short, useful thread on what it does, and does not, propose:


It's basically DOMA in reverse.  In the (again, very unlikely) event that Obergefell goes away, not all states would be required to legalize same-sex marriage, but they would have to recognize same-sex marriages obtained in other states.  This crafting strikes me as the best way to maximize the number of Congressional 'aye' votes.  Credit is due to those who wrote it this way, eschewing temptations to load it up with poison pills on religious liberty and other possible red lines.  This does not appear to have been drawn up as a partisan messaging or point-scoring bill; it looks like something actually designed to pass.  Imagine that. Doing so could allow a number of Republicans to burnish their bipartisan credentials, while also defusing some of the overwrought panic in certain quarters about same-sex suddenly being at grave risk (a notion that has been the subject of much hyperventilation post-Dobbs).  It could lower the temperature of our politics, even if fleetingly, and just by a hair.  And these votes are rather low-stakes anyway because...same-sex is, and almost certainly will remain, the law of the land, under the standing Obergefell precedent.  I'll leave you with two thoughts:

(1) I've often argued that it's wrong to consider abortion and LGBT rights to be a social issues 'package deal.'  Events over the past few weeks underscore why that's the case.  Close to 50 House GOP members voted to codify SSM, and an unknown number of Senate Republicans may do the same in the coming days.  Contrast that with Democrats' so-called "codification of Roe" bill, which was so grotesque and extreme that every single Republican on Capitol Hill opposed it, including the pro-choice ones.  Likewise, Public opinion on abortion is messy, complicated, and divided, as it has been for decades.  Public opinion on same-sex marriage has shifted inexorably into super-majority territory.  These issues are not alike.

(2) Is there really a chance that Senate Democratic leadership may not move on this bill?  C'mon:


Mitch McConnell is being characteristically cagey, waiting to see that his counterparts are going to do with the Senate calendar.  Chuck Schumer may be a weak leader and a poor strategist, with a bottomless appetite for cynicism -- but I'm not sure even he is sufficiently incompetent and cynical to blow this one.  Especially if there are 60 votes.  We'll see.

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