.@HouseDemocrats passed bipartisan and bicameral legislation to enshrine into law a fundamental freedom: the right to marry whomever you choose. Shamefully, 157 Republicans do not believe marriage equality should be the law of the land.
— Nancy Pelosi (@SpeakerPelosi) July 25, 2022
In her speech (video below) on the House floor prior to passage in the chamber of the Respect for Marriage Act, the Speaker noted the legislation would repeal the Defense of Marriage Act and (at 5:24) maintained
This legislation also guarantees that no married couple can be denied equal protection under federal law. This is really very important- from tax provisions, to social security benefits, and more, even if the Court were to erase marriage freedom, God forbid. Finally, this legislation bars states from denying recognition to valid out-of-state marriages even if a state were to enact heinous restrictions.
It would indeed accomplish the latter. However, as the ACLU explains
While the bill and bipartisan vote are important, the bill is quite limited.
Here’s why: The Respect for Marriage Act repeals the 1996
Defense of Marriage Act, which in turn did two things: DOMA barred the federal
government from respecting the marriages of same-sex couples who were married
under state law, excluding them from federal recognition in over 1,000
contexts, from Social Security survivor benefits to the ability to sponsor a
spouse for citizenship to equitable tax treatment. It also said that the Full
Faith and Credit Clause of the Constitution doesn’t require states to respect
the marriages of same-sex couples performed by other states.
The Supreme Court struck down the federal recognition portion of DOMA in the 2013 United States v. Windsor decision. After Dobbs, people fear that Windsor could be overturned, so the Respect for Marriage Act fully repeals the federal respect portion of DOMA and replaces it with a requirement of respect by the federal government. It also repeals the Full Faith and Credit portion of DOMA, replacing it with a statement that Full Faith and Credit requires inter-state recognition. Those would both be significant advances that would backstop the Supreme Court’s ruling in Windsor and the inter-state recognition portion of its ruling in Obergefell v. Hodges should they be overturned.
The Respect for Marriage Act would not require any state to allow same-sex couples to marry.
If the Supreme Court overturns Obergefell v. Hodges, which
established that the fundamental right to marry covers same-sex couples, the
Respect for Marriage Act would not stop any state from once again refusing to
issue marriage licenses to same-sex couples. The federal government would still
be required to respect same-sex couples’ already-existing marriages, as would
other states in many circumstances. But a state that wanted to get out of the
business of issuing marriage licenses to same-sex couples would not violate the
Respect for Marriage Act.
Nancy Pelosi wants to make it clear that the Respect for Marriage Act (which pertains also to interracial marriage) codifies Hodges v. Obergefell, thereby ensuring that "marriage equality" is "the law of the land." But it does no such thing. It is less ambitious, significantly more limited in scope, although members of her caucus are claiming otherwise.
It's possible, though highly unlikely, that Pelosi herself has been misled by aides into believing the legislation is all that. However, that's unlikely because there is no one in the chamber who needs to know what is in a bill more than does the Speaker of the House.
The Speaker instead may have lied to her caucus but she would have realized that most members would read this relatively short bill. Alternatively- and most likely- she and her caucus have determined to represent the bill as something that it is not. The media hasn't confronted party leadership over the misrepresentation, Republicans have ignored it, and it's clear that major Democrats aren't going to let the public in on their motive.
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