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What the Same-Sex Marriage Bill in Congress Would and Wouldn’t Do




The US Congress has moved a step closer to approving proposed legislation codifying the federal government’s embrace of same-sex marriage. The right to such unions is the law of the land throughout the US today but only because of a 2015 Supreme Court decision. And civil rights advocates fear that ruling is in danger of being reversed by today’s more conservative panel of justices. Should that happen, the proposed new law in Congress would maintain some of the rights of same-sex couples but would fall short of preserving the status quo.

1. What’s motivating this push?

When the conservative-leaning Supreme Court in June overturned the 1973 Roe v. Wade decision establishing a constitutional right to an abortion, Justice Clarence Thomas wrote in a concurring opinion that the court should reconsider other “due process precedents.” He was referring to decisions in which the court has ruled that the Constitution’s Fourteenth Amendment guarantee that no one shall be “deprived of life, liberty or property without due process of law” also protects rights that aren’t spelled out in the document, such as a right to privacy in sexual relations. Thomas specifically mentioned the 2015 ruling in Obergefell v. Hodges, which found that the Fourteenth Amendment requires states to license same-sex marriages and recognize such unions performed in other states. While there is no indication that the Supreme Court intends to follow Thomas’s suggestion, Democrats who lead both chambers of Congress vowed to pursue legislation protecting same-sex marriages.

2. What would the legislation do?

The legislation would repeal the Defense of Marriage Act, which Congress passed in 1996. Under DOMA, as the act is called, states weren’t required to recognize same-sex marriages conducted in other states, and marriage was defined, under federal law, as a union between one man and one woman. For a time, the second provision denied same-sex spouses certain federal benefits, many of them related to taxes and Social Security payments. However, the Supreme Court struck down that provision in a 2013 case, United States v. Windsor, and DOMA became dormant after the Obergefell decision. Still, the law remains on the books. The new legislation would repeal it, affirmatively recognize same-sex marriages at the federal level, and prohibit states from denying the validity of same-sex unions legitimately conducted in other states.

3. What wouldn’t it do?

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It wouldn’t require states to themselves license same-sex marriages, as the 2015 Supreme Court ruling does. If the Supreme Court were to overturn Obergefell v. Hodges, constitutional amendments or bans on same-sex marriages would become enforceable again in at least 29 of the 50 states, according to a report by the Movement Advancement Project, an advocacy group that champions LGBTQ rights.

4. Where is public opinion on this issue?

When DOMA was signed into law by President Bill Clinton in 1996, just 27% of Americans said same-sex marriages should be recognized as valid under the law, according to Gallup poll data. That figure has steadily increased, with Gallup now finding that 71% of Americans say same-sex couples should be allowed to marry.

5. What’s the status of the bill?

The House of Representatives in mid-July easily passed a version of the legislation on a 267-157 vote, with 47 Republicans voting with every Democrat in support. The Senate, which is split 50-50 between the two political parties, passed an amended bill Nov. 30, with 12 Republicans in favor along with all Democrats present. The amendment was aimed at ensuring that the measure would not diminish religious and conscience protections. For example, non-profit religious organizations would not be required to provide services for any marriage celebration. The revision also prohibits the bill from being used to deny or alter benefits unrelated to marriage, such as a church or other nonprofit’s tax-exempt status. The amended bill will next go back to the House, and if it passes as expected it would head to President Joe Biden’s desk for him to sign it into law.

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