Progress can be painfully slow in the American constitutional system. That makes it all the more important to recognize when the process works as it should.
Last week, the Senate passed a bipartisan bill that will require states and the federal government to recognize same-sex marriages that have been conducted in any state or U.S. territory where such unions are legal. It also affirmed the legitimacy of same-sex marriages for the purpose of federal benefits. It’s now back to the House, where an earlier version passed in July. Should the bill advance as expected, President Joe Biden has said he’ll promptly sign it.
Arguably, the measure is superfluous. Although it would formally repeal the 1996 Defense of Marriage Act, which had defined marriage as a union of one man and one woman, more recent Supreme Court precedents had effectively already invalidated it. Since the 2015 Obergefell v. Hodges ruling, moreover, gay marriage has been established as a constitutional right.
Yet the Respect for Marriage Act, as the new bill is titled, should stand as a landmark nonetheless, for two reasons.
One is that it affirms the value of making policy by legislation as opposed to judicial fiat. Supporters of abortion rights have recently been dismayed to realize that a right invented by a court in one era — as with Roe v. Wade — can be just as easily dismantled in another. Indeed, Justice Clarence Thomas, in his concurring opinion in the case overturning Roe, suggested that the decision invited reconsideration of other high court rulings, including Obergefell.
No one joined Thomas’s opinion, and Obergefell is almost certainly here to stay. But the point stands: An elected legislature, accountable to voters and responsive to shifts in public opinion, is the appropriate venue for negotiating wide-ranging social policies. Same-sex marriage now has a firmer basis in federal law, as well it should: Polls show that more than 70% of Americans support such unions.
A second, related virtue of the bill was procedural. After the House passed the original version, Senate Democrats could’ve played politics, dared Republicans to mount a filibuster, and used their opposition as a cudgel during the midterms. Instead, the bill’s cosponsors accepted that genuinely undecided Republicans such as Mitt Romney had good-faith reservations about the bill and held off on voting until after the midterms. That collegial trust paid off: Twelve Republicans — about a quarter of the Senate GOP conference — eventually crossed over and supported a revised version that addressed their concerns about religious liberty.
As recently as 1996, the U.S. was solidly opposed to gay marriage. Today — thanks in large part to decades of hard work and political pressure by advocates for marriage equality — lawmakers in both parties have fashioned a bargain reflecting a new national consensus. That’s how the democratic process is supposed to work.
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The Editors are members of the Bloomberg Opinion editorial board.
