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Let’s start with the positive: Republicans and Democrats are coming together to protect same-sex marriage from the Supreme Court.
The Respect for Marriage Act codifies marriages and came about amid worries among Democrats that the same conservative majority on the Supreme Court that took away the right to abortion will target same-sex marriage in the future.
The version that overcame a filibuster in the Senate passed the Senate Tuesday. A dozen Republican senators from across the country voted with Democrats before Thanksgiving to limit debate and move toward a final vote.
It next goes to the House for approval before President Joe Biden can sign it into law.
But there is a fair amount of fine print.
First, the bill does not require all states to allow same-sex marriage, even though that is the current reality under the 2015 Obergefell v. Hodges decision. Rather, if the Supreme Court overturned Obergefell and previous state prohibitions on same-sex marriage came back into effect, the Respect for Marriage Act would require states and the federal government to respect marriages conducted in places where it is legal.
There are religious exceptions. Republican supporters have emphasized the elements in this Senate version that protect nonprofit and religious organizations from having to provide support for same-sex marriages.
“I will be supporting the substitute amendment because it will ensure our religious freedoms are upheld and protected, one of the bedrocks of our democracy,” said West Virginia Sen. Shelley Moore Capito in a statement after helping break the filibuster.
It took months of behind-the-scenes effort to bring 10-plus Republicans on board.
The is all academic right now. This bill is only being passed in case the now-solidly conservative Supreme Court, which has taken delight in upending precedent, were to revisit the Obergefell v. Hodges decision that created a national right to marriage for same-sex couples.
Two of the justices who voted in favor of that ruling have been replaced by Republican-appointed conservatives, which means that if the case were heard today, there’s a real likelihood it would be decided differently.
While Justice Samuel Alito seemed to want to wall off the abortion rights precedent upended by the Supreme Court earlier this year, CNN’s Ariane de Vogue has written about how the decision in Dobbs v. Jackson Women’s Health Organization could affect issues like marriage. Read her story.
Despite the fine print, it is almost unbelievable that less than a generation ago, Republicans and Democrats, along with a Democratic president in the ’90s, worked together to protect the “institution of marriage” from same-sex unions.
Today, it’s Republicans and Democrats, along with a Democratic president, working together to protect same-sex marriage from a government institution.
During that time, public support for same-sex marriage grew from about a quarter of the public in the year the Defense of Marriage Act was enacted to 71% in Gallup polling this year.
The issue has played a role in multiple US elections, including, arguably, the one that just took place.
Here’s a brief history of marriage equality playing a role in prior election years:
In 1996, Republican majorities in the House and Senate sensed a political opening after then-President Bill Clinton failed to allow gay people to openly serve in the military.
They were also trying to get ahead of a Hawaii court decision that could have legalized same-sex marriage in that state. Fearing every state might have to recognize same-sex unions, Republicans pushed the Defense of Marriage Act, known as DOMA.
It declared marriage as between one man and one woman and allowed states to refuse to recognize marriages. It also withheld federal benefits from married same-sex couples. In 2013, a part of DOMA was found to be unconstitutional.
DOMA had broad approval. Democrats like then-Sen. Biden voted for the bill. Current Senate Majority Leader Chuck Schumer, and many other Democrats whose names you’d recognize, were among the 342 who voted for the bill in the House.
Current House Speaker Nancy Pelosi was among the 67 members to vote “no,” along with then-Rep. Steve Gunderson, who at the time was the House’s only out gay Republican.
In 2004, placing anti-gay-marriage amendments on ballots in key states like Ohio was smart politics. It helped George W. Bush win reelection to the White House and the GOP gain seats in the US Senate.
Bush endorsed a constitutional amendment to ban same-sex marriage. The Democratic candidate, John Kerry, also opposed same-sex marriage at the time.
In 2008, even as more in his party began to publicly support marriage equality, Obama continued his opposition.
He has more recently said and written that he always personally supported same-sex marriage rights. His campaign aide David Axelrod has written that Obama made a calculated decision to oppose gay marriage.
“He grudgingly accepted the counsel of more pragmatic folks like me, and modified his position to support civil unions rather than marriage, which he would term a ‘sacred union,’” Axelrod wrote in a memoir.
In 2012, following the lead of then-Vice President Biden, Obama officially evolved on the issue and said he now supported marriage equality. It was a big moment.
A few years later, in 2015, the Supreme Court ruled in favor of same-sex marriage nationwide.
“I’m fine with it,” Trump said in 2016 during an interview with “60 Minutes.”
He’d go on to brag about being a champion for gay rights, although many LGBTQ activists would disagree.
The politicians of the ’90s have largely evolved with the country.
But this summer, one of the Supreme Court’s relics from the ’90s, Justice Clarence Thomas, questioned the 2015 marriage decision he opposed. As a result, Republicans and Democrats have come together again to undo what they did in 1996 and try to guarantee marriage as a right for all Americans.