On Wednesday, the United States Senate invoked cloture for the Respect for Marriage Act (H.R. 8408). This brings the bill one step closer to becoming law.
The cloture motion was agreed to by all 50 Democratic senators as well as 12 Republican senators. Thirty-seven other Republicans voted "nay," and one member abstained from voting.
The bill originated in the House of Representatives, where it was introduced by Representative Jerrold Nadler (D-N.Y.). The bill passed on July 19 by a vote of 267-157. Among the 267 yeas, were 47 Republican representatives.
According to its text, the four-page bill seeks to "repeal the Defense of Marriage Act" (DOMA) and "ensure respect for State regulation of marriage."
The bill stipulates that "[n]o person acting under color of State law may deny full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between [two] individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals."
The proposed legislation also proscribes state actors from denying "a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals."
Asked about the bill's potential impact, Roger Severino of the Heritage Foundation said, "All this bill does is target people of faith who don't support woke ideology."
Instagram | The Daily Signal | November 16, 2022
In short, the bill seeks to codify aspects of both Obergefell v. Hodges, 576 U.S. 644 (2015) (holding that the Constitution provides a fundamental right to marry that cannot be denied to homosexuals) and Loving v. Virginia, 388 U.S. 1 (1967) (holding bans on interracial marriage unconstitutional).
The bill goes on to assert that either the attorney general or a private citizen who is "harmed" by a violation of the Act may bring a civil suit and seek declaratory or injunctive relief.
The Defense of Marriage Act, signed into law by President William J. Clinton in 1996, required that the word "marriage" be construed in any federal statute, ruling, regulation, or interpretation of any administrative agency as meaning "only a legal union between one man and one woman as husband and wife."
In addition to defining "marriage," section 3 of DOMA (and 1 U.S.C. § 7) required the word "spouse" to be interpreted only as meaning "a person of the opposite sex who is a husband or wife."
In United States v. Windsor, 570 U.S. 744 (2013), the United States Supreme Court struck down section 3 of DOMA. The Court held that the denial of federal recognition of same-sex marriages was a violation of the Fifth Amendment's Due Process Clause.
Moreover, in Obergefell, the Court, in a five-to-four decision held that being able to marry is a "fundamental right" that is guaranteed to homosexual couples by both the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. The decision required all 50 states to perform and recognize the marriages of same sex couples on the same conditions and terms as normal marriages.
In addition to repealing DOMA in full, the bill proposes to establishes two procedural methods for determining whether a marriage is valid for federal purposes: First, if a marriage is celebrated in any state of the Union, the marriage is valid for federal purposes; second, if the marriage is celebrated elsewhere, the marriage is valid for federal purposes as long as it is valid in at least one state.
According to Lynn D. Wardle, a professor of law at Brigham Young University School of Law, the bill's seemingly fool-proof tests blatantly violate the principle of federalism. According to Wardle, it is "substantively biased to circumvent state polices that do not allow or recognize same-sex marriage."
Although similar bills have been proposed in the past, none has progressed this far. According to CNN Politics, since June of this year, when the Supreme Court handed down its decision in Dobbs v. Jackson Women's Health Organization (which overturned Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992)), liberals have feared that other previously deemed "fundamental rights" would be erased by the Court.
Much of the left's fear stems from Associate Justice Clarence Thomas's concurrence in Dobbs, in which he states:
"Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity."
Dobbs v. Jackson Women's Health Organization, 597 U.S. __ (2022) (Thomas, J., concurring)
The left's fear seems to be at least somewhat unfounded because it is expressly stated at least twice in the majority opinion, which Justice Thomas joined in full, and at least once in Justice Kavanaugh's concurrence, that the Court's holding in Dobbs has no implication on anything other than abortion.
"I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents."
Dobbs v. Jackson Women's Health Organization, 597 U.S. __ (2022) (Kavanaugh, J., concurring)
The official website for the United States Senate defines cloture as "a Senate procedure that limits further consideration of a pending proposal to thirty hours in order to end a filibuster." Before becoming law, the bill must be voted on by the Senate. A three-fifths majority (i.e., the affirmative vote of 60 out of 100 senators) is needed to invoke cloture. Given that the Democrats have 50 seats in the Senate and given that the Constitution vests the vice president with the power and duty to cast the tie-breaking vote, it is all but certain that the bill will pass unimpeded in the Senate. After passage in the Senate, the bill would be presented to the president for approval.
Though the president does have the constitutional authority to veto the bill (which, of course, could be overridden by a two-thirds vote of each body of the legislature), it is highly unlikely that Joe Biden would refuse to sign the bill into law. While serving as the Vice President of the United State, as early as 2012, Biden advocated for gay rights.
On May 6, 2012, in an interview on NBC News' Meet the Press, Biden diverged from the initial official policy of the Obama administration, which was opposed to gay marriage. Surprising many (including his own boss), Biden said, "Look, I am vice president of the United States of America. Um, the president sets the policy. I am absolutely comfortable with the fact that men marrying men, women marrying women, and heterosexual men and women marrying are entitled to the same exact rights—all the civil rights, all the civil liberties—and, quite frankly, I don't see much of a distinction, uh, beyond that."
NBC News | Meet the Press | May 6, 2012
On Wednesday, Biden tweeted: "Love is love and Americans should have the right to marry the person they love. Today's bipartisan Senate vote gets us closer to protecting that right. The Respect for Marriage Act protects all couples under law—I urge Congress to send the bill to my desk so I can make it law."
According to a Gallup poll, 2021 was the first year in which a majority (55 percent) of Republican voters showed support for homosexual marriage. The same poll found that 83 percent of Democrat voters expressed support for same-sex marriage.
Support for Gay Marriage, by Political Party -- 1996-2021 | Gallup | June 8, 2021
Conversely, a Pew Research poll found that only 39 percent of Americans who attend church "weekly or more" expressed support for same-sex marriage. A separate Pew Research poll revealed that 82 percent of adults who are "absolutely certain" there is a God opposed same-sex marriage. That percent is increased by 12 percentage points (i.e., to 94 percent) when people who are "fairly certain" that a God exists are considered also.
According to The New York Times, the Senate is expected to vote on the Respect for Marriage Act shortly after Thanksgiving.
This is a developing story.
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