Should Same-Sex Marriage Rights Be Codified in Federal Law? (H.R. 8404)
Do you support or oppose this bill?
Bill Status
- 7/19/22: The House is expected to vote on this bill.
What is H.R. 8404?
This bill — the Respect for Marriage Act — would repeal the federal Defense of Marriage Act and establish through a statute that a marriage is legitimate under federal law if it was valid in the state where it was performed.
Additionally, the bill would prohibit any person acting under the color of state law from denying full faith and credit to an out-of-state marriage based on the sex, race, ethnicity, or national origin of the individuals in the marriage; provide the attorney general with the authority to pursue enforcement actions; and create a private right of action for any individual harmed by a violation of this provision.
Argument in favor
The federal right to gay marriage as established in Windsor and Obergefell is under threat because of the Supreme Court’s recent reversal of abortion precedents in Dobbs and the willingness of at least one justice to revisit decisions like those upholding gay marriage. This bill would codify same-sex marriage rights in federal law.
Argument opposed
The Supreme Court’s majority opinion in Dobbs explicitly rejected the notion that the ruling applies to other non-abortion precedents, such as the right to gay marriage, and there isn’t any broad push to reverse that right. This bill is a solution in search of a problem, and nothing more than an election year messaging bill designed to boost Democrats’ electoral prospects.
Impact
People seeking same-sex marriages; state and local governments; and the federal government.
Cost
A CBO cost estimate is unavailable.
Additional Info
In-Depth: House Judiciary Committee Chairman Jerry Nadler (D-NY) introduced this bill to enshrine marriage equality under federal law and offered the following statement upon its introduction:
“Three weeks ago, a conservative majority on the Supreme Court not only repealed Roe v Wade and walked back 50 years of precedent, it signaled that other rights, like the right to same-sex marriage, are next on the chopping block. 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. Today, we take an important step towards protecting the many families and children who rely on the rights and privileges underpinned by the constitutional guarantee of marriage equality. The Respect for Marriage Act will further add stability and certainty for these children and families.”
Lead Senate sponsor Sen. Dianne Feinstein (D-CA) added:
“In overturning Roe v. Wade, the conservative Supreme Court majority indicated it is willing to attack other constitutional rights, including same-sex and interracial marriage. In fact, one justice specifically noted that the court’s Obergefell decision confirming same-sex marriage should be revisited. Our bill would repeal the discriminatory Defense of Marriage Act and ensure that marriage equality remains the law of the land.”
Sen. Susan Collins (R-ME), a cosponsor of the bill’s Senate companion, explained:
“Maine voters legalized same-sex marriages in our state nearly a decade ago, and since Obergefell, all Americans have had the right to marry the person whom they love. During my time in the Senate, I have been proud to support legislation prohibiting discrimination based on sexual orientation and gender identity, from strengthening hate crime prevention laws, to repealing ‘Don’t Ask, Don’t Tell,’ to ensuring workplace equality. This bill is another step to promote equality, prevent discrimination, and protect the rights of all Americans.”
The Supreme Court’s majority opinion in Dobbs explicitly rejected the argument that its ruling overturning abortion rights under Roe and Casey casts doubt on other precedents, including Obergefell which held there is a constitutional right to same-sex marriages. Justice Samuel Alito’s majority opinion countered those suggestions:
“Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.”
Justice Clarence Thomas wrote a concurring opinion that wasn’t joined by any other justices which took issue with the Court’s jurisprudence in substantive due process precedents like Obergefell. Notably, the Supreme Court requires four justices to vote to grant certiorari and hear a case, so the lack of other justices joining his concurrence indicates other justices may not share his view. Justice Thomas’s concurrence explained that while Dobbs didn’t address his issues with the broader substantive due process doctrine, he believes those rulings were improperly decided so they should be overturned and the constitutionality of the underlying rights they established should be reexamined based on other grounds:
“The Court today decliens to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut; Lawrence v. Texas; and Obergefell v. Hodges, are not at issue. The Court’s abortion cases are unique, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised”. Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.”
House Rules Committee Ranking Member Tom Cole (R-OK) criticized Democrats for bringing this bill directly to the floor without holding a hearing in a committee with jurisdiction, thereby circumventing the process of regular order. He explained:
“We will also be considering an additional bill, which the Majority is calling the Respect for Marriage Act, on very short notice. Indeed, up until noon we did not know we were going to be considering this bill, let alone what the text entailed. The Majority is once again failing to even pretend to adhere to regular order. That is deeply concerning. Instead of working through the committees of jurisdiction, the Majority instead drafted this bill behind closed doors in the Speaker’s office and sent it straight to the Rules Committee after giving members just one hour to review it. To say this process stinks is an understatement: indeed, this is no process at all. But given how the current Majority has treated the House this Congress, between fundamentally changing the way the House operates through proxy voting, to completely locking down alternative ideas, to writing bills in the Speaker’s office instead of in committee, I should not be surprised.”
This bill has the support of 160 cosponsors in the House, all of whom are Democrats.
Of Note: The Supreme Court ruled the federal Defense of Marriage Act was unconstitutional in 2013 in a case known as U.S. v Windsor, and two years later it deemed state defense of marriage laws unconstitutional in Obergefell v. Hodges. Both decisions were contentious 5-4 rulings.
Tell your reps how to vote on this bill!
Media:
- Sponsoring Rep. Jerry Nadler (D-NY) Press Release
- House Rules Committee Republicans Press Release (Opposed)
- Bill Text
- Opinion of the Supreme Court in Dobbs (Context)
- Causes (Dobbs - Context)
- Causes (Defense of Marriage Act - Context)
Summary by Eric Revell
(Photo Credit: tedeytan via Flickr / Creative Commons)
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Consider the ramifications if the rights of same sex couples to marry are not a Nationally guaranteed right but is instead left to individual States to determine.
Consider a gay couple legally married in their state on a road trip through another state that does not recognize gay marriage rights, and needing to spend the night to rest before continuing.
Can they be arrested and imprisoned in this state for violating the retro-states sodomy laws?
OK, I know that these laws have not reappeared in the retro states, yet. But, sodomy laws were retracted based in part on the same constitutional right to privacy which the conservative activist right-wing Supreme Court Justice wizards waived their infinite entitlement wands to declare no longer applied - just ignoring 50 years of precedence which was reaffirmed multiple times to ensure a women’s right to bodily autonomy as predicated on the right to privacy.
And anybody who is paying attention can see that such sodamy laws will be coming as the puritans continue to force their minority views on the majority.
All basic human rights need to be enacted and protected nationally.
Reasonable, proactive legislation since the current Supreme Court decides in favor of legislation and ignores regulations, case history and precedence.
with the current Supreme Court, the only way to protect rights is via legislation.
Until this current Supreme Court is changed in some way (change in membership, rules, ethics, etc) legislation is the only thing that can be relied on.
Get the government out of ALL marriage.
Yes, absolutely.
Rights that effect people who are empowered to cross state borders must be preserved on a national basis. We no longer live in the eighteenth century when states were essentially democratic feudal societies where most people never crossed State borders, were mostly interdependent with people within their States and there were no abilities to rapidly communicate or travel to and from a national governance or even other States.
A distributed State focused governance made a lot of sense in the eighteenth century. It still does for those specific issues that do not cross state lines and cannot effect or influence neighboring State's rights - like locality security and social services and the collection of locality taxes to pay for these services. Over-riding State's rights is a cumbersome, burdensome and contraditictory artifact left from what was needed 400 years ago for reasons which are irrelevant today.
Issues that define basic human rights in this country are National issues and are not just State issues, and should be treated as such.
Conservatives are generally focused on preserving or restoring 'what was' and are generally afraid of change. Liberals are generally focused on the 'what is or should be coming' and are not afraid of change nor taking proactive action to counter looming issues that threaten the future or to lead the charge to make our future better.
The world is rapidly changing technologically, geo-politically, and way-of-life challengingly ways.
Following the conservative mantra of burying their heads in the treasured grounds of the 'what was' in the seventeen hundreds will doom our country's and the world's futures.
Consequential life threatening changes are now occurring which will require pro-active foreward-looking policies and actions by world-wide governances to address.
Progressive, liberal oriented leadership is needed because the conservative 'what-was' is gone and will not come back no matter how hard they try, not ever.
Well thought out and proactive actions are needed by people who are unafraid and capable of taking carefully risk mitigated actions to deal with the many known threats ahead.
Vote Blue like your future life depends upon it - becuase, in most cases, it does!
Republican hypocrisy in all its glory:
Repubican votes against same-sex marriage bill then attends his gay son's same-sex marriage.
https://apple.news/ARu3T42bUSQK9GyN7iDsptA
AOC pretends to be arrested and handcuffed today, in front of the SC. Pathetic and such a liar! She forgot for a moment and held her fist up for a fan.
https://youtu.be/vXc6Rcl1KTI
I strongly urge you to support this Bill because the U.S. Constitution allows for "the pursuit of happiness" for all people. That's why this seems like a no-nonsense vote.
Do not vote for HR 8404. This will destroy freedom of religion in America.
Please vote against H. R. 8404, the government needs to stop meddling in definitions and needs to respect peoples' religious views. Attempting to force acceptance of non-traditional relationships will only invite more conflict and turmoil, and more government harassment of people for their religious convictions. Please vote NO on HR 8404.
No man, woman, or child is safe from the current right wing political activist clique of the U. S.Supreme -- nor from MAGA radicals in the Republican Party, the RNC MAGA leadership, Congressional MAGA enthusiasts, MAGA Republican-led state legislatures, or local MAGA radicals, all of whom who are determined to deny certain American citizens -- mostly minorities -- equality and equal protection under the law.
This group of "America First", dyed-in-the-wool Trump enthusiasts and 2020 election deniers are on an anti-democratic rampage and hope to create an authoritarian government in the United States made in their image where minorities -- particularly LGBTQ+ individuals -- would be refused marriage rights that the rest of our citizens take for granted, not to mention a myriad of other rights guaranteed by the U. S. Constitution.
I grew up in the 1950's when LGBTQ+ individuals were oppressed, beaten, hung, drowned, burned, tarred and feathered, and driven to suicide. Those horrendous things still happen today, although thank God less often. Nonetheless, LGBTQ+ youth still suffer extremely high rates of suicide and transgendered individuals are vilified and still at high risk of being beaten or murdered on the street.
With Obergefell v. Hodges, the Supreme Court made it legal for LGBTQ+ individuals to marry their same sex partners.
In my lifetime, I have seen a better day dawn for the civil rights of LQBTQ+ people, but right-wing Justices such as Clarence Thomas have put those hard won rights in jeopardy.
I strongly urge Congress, especially my own Congressional representatives from Texas, to pass legislation to permanently protect the right of LGBTQ+ individuals to marry their same sex partners.
It's past time to end the fear that LGBTQ+ civil rights can be snatched away by the hatemongers and those who want to exercise jurisdiction on the private lives of their law abiding fellow citizens.
Marriage rights are between 2 consenting adults and she be allowed no matter what gender they may be! I am a straight woman married to a straight man and how consenting adults live their lives is noones business but their own. Codify marriage equality now!
There's all this talk of personal freedom and religious protection in terms of rights. It only seems to apply to Christian beliefs though, and only in terms of taking rights away from others. I was raised christian and that God is everywhere. That is why I treat all creatures humans, animals, the planet with respect. Seeing christians use obscure passages to restrict if not outright bans the freedoms of others is sickening. Who you love shouldn't be illegal.
This is a basic right all couples should have regardless of their makeup. It needs to be protected via federal legislation.
No no no
The math is simple. 71% of Americans support same-sex marriage. The Senate must do their duty and represent the people by passing this bill and protecting rights that are in danger of being taken away by the minority- packed Supreme Court.
This shouldn't be a question in 2022
The Respect for Marriagebact is an important first action to ensure out LGBTQ citizens as fully accepted members of the US.
State law has always regulated marriage (age, closeness of relationship, etc.). But a marriage legally performed in one state is recognized in all other states and under federal law. For example, in some states you can marry your first cousin, in other states only if one party is sterile, in other states not at all. But if you marry your first cousin in a state that permits it, and you move to a state that does not, your marriage does not become null and void. Ditto if you marry at, say 16 years old, in a state that allows that.You move to a state that does not allow that, you are still married. (But maybe we need a federal definition of marriage as only two people?)
Only the Christian Taliban are against it. After the recent Supreme Court decisions, I no longer have any respect for our judicial system and will do whatever I can to undermine it.
I support codifying same sex marriage. It's unfortunate that the Supreme Court has become a political body that doesn't reflect the will of the people.
Congress can correct the injustice that's likely to come from this radical right wing body.
SEPARATE CHURCH AND STATE! Why would we care if same sex marriages had equal rights, or could exist period, unless it was some misguided effort to manipulate Christians to forget what it is to be an American as well. We came here to escape tyranny largely shaped by leaders who were religious zealots or whom did not want to be turned on by the populous. Well gang, here we are again only now it is the place we escaped to the FREE government we formed, the Constitution meant to protect us from religion influencing decision making.
If you believe in God and the infallibility of God then you should certainly support same sex marriage because God made LGBTQ people too.
Protection of all peoples rights needed.
My question is will Clarence Thomas want to go after the Loving decesion allowing interacial marriage now ????????
It's my Christian (follower of Christ) view is that marriage before God should be between a man and a woman. Civil unions of same sex situations for legalities are something that need to be worked out.
Who someone loves & wants to be with is NO ONE ELSES BUSINESS