While taking a stand against gay marriage and other LGBTQ issues after the fall of Roe v. wade would look like an opportunity for local elected Republicans, Slate senior writer Mark Joseph Stern says that things look pretty different for GOP lawmakers in Washington. “On the whole, the party is still anti-LGBTQ,” says Stern, “but there’s this increasing divide within the party on these issues, where Republicans know they are clearly losing: 70-plus percent of Americans support same-sex marriage, and there is pretty strong support for civil rights protections for LGBTQ people.” This week, Democrats are trying to make their Republican colleagues feel this pain, introducing a bill protecting marriage equality at the federal level—titled the Respect for Marriage Act—and daring Republicans not to vote for it. On Wednesday’s episode of What Next, I spoke with Stern about why this bill could really pass and sustain itself as law. Our conversation has been edited and condensed for clarity.
Mary Harris: It wasn’t that long ago that Congress was passing the Defense of Marriage Act, or DOMA, which made sure gay people who got married would not enjoy the benefits of a legal union, at least not at the federal level. It passed back in 1996, after Hawaii seemed to clear the way for same-sex weddings to begin.
Mark Joseph Stern: This sets off a huge panic across the political spectrum. Democrats and Republicans were both very anti-gay at the time, and they feared that, if same-sex couples could get married in Hawaii, those marriages would be recognized at the federal level and every other state would have to recognize those marriages. There are more than a thousand rights and privileges under federal law that are afforded to couples who are married just by dint of having a marriage license: taxes, benefits for children, the list goes on. Because of DOMA, couples who could get married in states like Massachusetts starting in 2004 were still legal strangers in the eyes of federal law.
They couldn’t be common-law married.
No, because the federal government does not recognize common-law marriage either. So you have a real roadblock to true equality, because even as more and more states are trying to grant equal recognition to same-sex couples, you have the federal government saying no.
DOMA is still on the books right now, right? It’s just ineffective because of the Supreme Court.
Yeah. The Supreme Court can strike down laws, but it can’t erase them from the books. This is something we’ve all learned in the post-Roe era, because there were many abortion bans that were passed before Roe that sprung back into effect when the Supreme Court overturned that decision. The same thing is true of DOMA: It was sort of suspended by the Supreme Court in 2013 and is inoperative—it can’t be legally enforced. But if today’s Supreme Court overruled that decision, it would suddenly spring back into life. And many people’s marriages, including my own, would be null and void in the eyes of the federal government.
The abortion decision from this year was a canary in the coal mine: The Supreme Court could roll back these rights, and Justice Clarence Thomas had this concurrence where he suggested, that some rights under 14th Amendment should be reconsidered, which might lead to those being targeted.
I would put the odds even higher than just “might.”
Democrats are seeing this conservative energy and passing bills to try to deal with the fact that such rights may be imperiled: bills protecting abortion rights, codifying marriage equality, and preserving rights to contraception. Do these stand a chance of passing in the Senate?
Only one of them does, and that is the Respect for Marriage Act, which would repeal the federal ban in DOMA, actually wipe it off the books—something the Supreme Court can’t do—and require every state to recognize same-sex marriages that were performed lawfully. There are already five Senate Republicans who have indicated they will support it, and what’s fascinating is that Mitch McConnell is not opposing it openly. He’s not whipping votes against it. He seems to view it as a kind of conscience vote, which was how Republicans in the House decided to approach it, leading to nearly 50 House Republicans supporting it. So I think that bill really could pass. I think all the others are dead on arrival.
The RFMA is, I think, a really good bill, and it does so much more than repeal DOMA. It also has this crucial provision that uses Congress’ power, under the full faith and credit clause of the Constitution, to mandate that every single state recognize a marriage license that was granted to a couple without regard to sex or race or ethnicity or national origin—and to fully acknowledge and respect the rights that are created and protected by that license. There is also this language that protects rights arising from marriage, which include, in every state, the right to legal parentage. That is really important because we’ve seen a lot of states, after Obergefell, try to roll back marriage equality by denying full and equal parenting rights to same-sex couples. So this bill is, I think, about as far as Congress could conceivably go under this Supreme Court in requiring that every state respect same-sex marriages—even if it stops short of requiring states to actually grant and license same-sex marriages.
Are you surprised this bill might pass?
I am extremely surprised. Currently, Republican senators tend to be more moderate than their state-level counterparts, and they also tend to be politically savvier about what is good for the party in the long run and at a federal level. So you can see them squirming. Our colleague Jeremy Stahl wrote a great piece documenting all of the terribly inconclusive and fretful reactions among Republican senators who were cornered about this bill, because it ain’t 2012 anymore and you can’t come out and be like, Queers shouldn’t be able to destroy the institution of marriage with their sodomy.
You have raised this other point, though, that it’s not like passing this bill won’t come with a cost for Democrats. And Democrats seem to know that. Can you explain?
So even when it looked like this bill was going to pass, we saw Majority Leader Chuck Schumer, majority leader of the Senate, put out some pretty lukewarm language about it not being a top priority at the moment. I think the reason why is because debating and passing this bill is going to eat up a lot of floor time in the Senate, and that floor time will not be spent advancing parts of Democrats’ agenda, including, most importantly, judicial confirmations. Democrats in the Senate have fallen really far behind on judicial confirmations: There are a ton of nominees who are awaiting a vote in the Senate who just haven’t gotten one. And Republicans are going to use every tool at their disposal to try to push back those votes because they think they’re going to win back the Senate in November and never let Democrats confirm another judge under Joe Biden.
So when we saw Republicans saying stuff like, I just haven’t read this bill, it’s not a priority for me, was that kind of a political tactic—like, keep this at arm’s length because we have this amount of time till we all go on recess?
Absolutely. It was a purely political tactic from my standpoint. The bill is so short. It’s a couple of pages. A non-lawyer could easily read it and grasp it, and you can explain it in a single sentence. I think it’s very clear Republicans want to use this as a kind of delay tactic to eat up all this time before the recess and ensure that senators go on vacation having not confirmed a bunch of Biden’s most important judges.
Could the Supreme Court come out of nowhere and kill this bill even if it passes?
The Supreme Court can do anything it wants, right? But I think the Respect for Marriage Act is as ironclad as laws come because it does something very clever, which is work around the Supreme Court’s irritating jurisprudence about state sovereignty and states’ rights by stopping short of telling states that they have to license same-sex marriages. It makes you respect an out-of-state marriage, and that, again, draws upon the Constitution’s full faith and credit clause, which Congress doesn’t draw upon too often. But it’s a pretty important source of power that basically says if the federal government wants to tell every state it has to recognize and respect some kind of document or civil judgment or record, including a marriage license, then it gets to do that. It is a really powerful thing, and it’s not a real gray area in the law. I think even a lot of conservative law professors would acknowledge that this is something Congress can do.