The Democrats’ codification strategy is about midterm politics

Published July 22, 2022 3:00am ET



Last Tuesday, the House of Representatives passed the Respect for Marriage Act, a bill that would codify in federal law the right to same-sex marriage, repeal the 1996 Defense of Marriage Act, and require states to recognize same-sex marriages performed elsewhere.

The bill passed the House by a sweeping 267-to-157-vote margin, with 47 Republicans joining all Democrats in support. While same-sex marriage was already established as a constitutional right by the Supreme Court in the landmark 2015 case Obergefell v. Hodges, federal laws overturned by the ruling that define marriage as a union between one man and one woman have never been formally repealed. In repealing DOMA and including same-sex unions in the federal definition of marriage, the Respect for Marriage Act would essentially codify the Obergefell decision into federal law. And while it would have no practical effect as long as Obergefell stands as the law of the land, in the event the court were to “reconsider” its ruling, as Justice Clarence Thomas has argued, the bill would circumvent efforts by states to revert marriage back to its traditional definition.

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