Congress Considers Gay Marriage Bill To Avoid a Future Supreme Court Showdown

In the wake of the reversal of Roe v. Wade, Democratic (and at least one Republican) lawmakers are looking to make sure gay marriage recognition is protected from potential future Supreme Court decisions.

On Monday, Rep. Jerry Nadler (D–N.Y.) reintroduced the Respect for Marriage Act, a bill that would overturn the federal Defense of Marriage Act (DOMA), the 1996 law that defined marriage as being between one man and woman and forbid federal recognition of same-sex marriages in states that had legalized it.

The Respect for Marriage Act has been introduced before, as far back as 2009. The last time it was introduced was in January 2015, but just months later the Supreme Court ruled in Obergefell v. Hodges that the federal government and states must recognize same-sex marriages. DOMA remained on the books but was now unenforceable.

But in the recent Dobbs v. Jackson Women’s Health ruling that reversed Roe v. Wade, Justice Clarence Thomas wrote a concurrence that said he believed some other rulings were subject to rethinking based on the logic the majority used to justify Dobbs. Obergefell was one of those rulings Thomas referenced. Though no other justices signed onto Thomas’ dissent, he clearly intended to invite states to bring challenges to these precedents in order for them to be reconsidered.

If Congress were to pass the Respect for Marriage Act, the federal government would then legislatively recognize these marriages even should the Supreme Court subsequently strike down Obergefell (or United States v. Windsor, a 2013 decision that was a precursor to Obergefell and held that DOMA is unconstitutional