On November 16, the US Senate invoked cloture opening the way for a vote on the Respect for Marriage Act (RFMA). On November 29, they voted 61-36 to pass the Bill with all Democrats supporting the legislation along with 12 Republicans. The House passed a version this summer and is a bit different, so there will need to be some work done before this is signed into law by President Biden. The RFMA ensures federal and state recognition of legal same-sex marriages. The natural inclination is to view this as a positive change and another indication that the United States is moving forward on human rights for all. But the picture is not so bright or clear.
Political Shift? Yes and No
We need to be careful about interpreting this as a significant shift. In terms of public opinion, yes substantial changes have taken place; and this is rare in the history of the US public opinion where these types of dramatic shifts seldom take place. Gallup asks the question: “Do you think marriages between same-sex couples should or should not be recognized as valid, with the same rights as traditional marriages?” In 1996, 27% of people responded in the affirmative and by 2022, it is 71%.
We do see shifts among Republican identifiers, but this has not moved the elites that much. In the Senate, the 12 Republican that voted for Final Passage and that helped clear the 60-vote margin were in part made up of “moderates” and retirees. 47 Republicans voted for the House version this summer. For both Houses, that is about a quarter of the Republican representatives. Given the new Republican Leadership in the House, you will not see anything remotely progressive in the next 2 years and in the foreseeable future.
Strategic Insulation
They will not say this, but the Republicans are more than happy to see this legislation at this time. It helps insulate them from that negative public opinion. They know this is a losing issue. It gives them cover now, and most importantly it removes this issue from the agenda in the 2024 elections. Look at this in context. The Supreme Court is setting the agenda and Democrats and Republicans are scared that the Court will pull another Dobbs decision and overturn Obergefell v. Hodges (2015), the landmark decision that legalized same-sex marriage The odds are against it, but with Justices like Kavanaugh, Alito, and Thomas on the Court, it would not be shocking. This is the entire reason for the Bill.
Substance of the Bill
The Supreme Court’s decision in Obergefell v. Hodges (2015) held that under the 14th Amendment, the Due Process Clause requires a State to license a marriage between two people of the same sex AND to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. The RFMA does not go as far as Obergefell v. Hodges. This bill only requires that the federal and state governments recognize legal same-sex marriages. If the Supreme Court decides to overturn Obergefell v. Hodges, a state could still ban same-sex marriage. It would just have to recognize marriages from other states.
Framing
Cloture would not have been invoked without the Religious Freedom Amendment. This amendment “Confirms that non-profit religious organizations will not be required to provide any services, facilities, or goods for the solemnization or celebration of a marriage.”
Republican Senators Thom Tillis (R-N.C.), Roy Blunt (R-MO), Cynthia Lummis (R-WY), and Mitt Romney (R-UT), have stated they would not have voted for cloture without this amendment. For example, Senator Thom Tillis (R-N.C.) stated:
“As we went through this bill, we listened to the very sincere concerns of Americans with strongly held religious beliefs who simply wanted to make sure that Congress protects their First Amendment rights,”
Senator Lummis added:
“As a Christian and a conservative, ensuring that the religious liberties of people in Wyoming are protected and that no institution would be forced to perform a ceremony that is not in line with their values is absolutely essential.”
If you go over to Wikipedia:
“The Respect for Marriage Act, abbreviated as RFMA, is a bipartisan bill in the United States Congress to repeal the Defense of Marriage Act, require the U.S. federal government to recognize the validity of same-sex and interracial marriages in the United States, and to protect religious liberty.”
For the Republican Party, the RFMA is a “religious freedom” bill, not a “same-sex marriage” bill.
In summary, this is a bill aimed at passing constitutional muster and surviving further Supreme Court actions. The Democrats are taking half a loaf of bread while the Republicans are simply happy to see this whole issue disappear.
