'We Have The Votes': The Senate Will Act This Week To Codify Same-Sex Marriage

[Desk trauma]

Congress wasting time on problems that don't exist while ignoring real ones.

It's a rare moment of planning ahead after they have been clearly told what's likely to happen if the court has their way.

 

[Hank77]

To be fair, it only says that legal same-sex marriages will be recognized by the federal government and that states, under the "full faith and credit" clause of the Constitution, should also recognize any 2 people legally married. It does not prevent, should Obergefell be overturned, states from making same-sex marriage illegal. In essence, it removes DOMA from federal law (even though it is no longer binding since Obergefell) and gives all 2 person marriages similar protection under the law. For those interested in reading the bill, it is relatively short, straightforward, and easy to read.

I don't know that it is that straightforward. Here is Sen. Lankford explaining some problems with the bill that could easily be fixed with amendments but the Dems. aren't allowing any.

 

[SimplyMe]

I don't know that it is that straightforward. Here is Sen. Lankford explaining some problems with the bill that could easily be fixed with amendments but the Dems. aren't allowing any.

Apparently, despite Lankford's saying it was impossible, the bill was amended before it was passed. We'll see what comes out of conference committee, though at this point it does appear the final version will be approved and sent for Pres. Biden's signature.

 

[essentialsaltes]

Thank the Programmers that the search is [well, was, briefly] fixed! Original thread on House passage.

 

[vegan rachel]

We all have the right to make our own choices whether or not other human agree or approve.
I am a whole food ethical vegan and do not believe humans eating flesh and blood is positive for the animals,
the environment, or for human health. However, most humans in the world are omnivores and choose
to eat flesh and blood from murdered animals. And that is the choice they have the right to make.
I am also a lesbian whether someone else approves of that or not. I have the right to love another adult
woman, and feel I have the right to "marry" that woman and make a commitment to her. Who is anyone
to tell me I am wrong, and must be heterosexual and love a man?. That would be both judgemental and hateful.
God is the only judge, and created me and the woman I love. I am proud of who I am and do not need to be
'converted", deprogrammed, or told I am wrong in any way for who I am. Peace be with you.

 

[grasping the after wind]

The court has said they're hoping to visit the issue as soon as they can. Don't blame Congress for taking time to address the will of their constituents in the face of unelected activist judges.

I believe it was a single Justice not the entire Court that talked about revisiting the issue. Until the Supreme Court rules otherwise there is no problem. The Congress does not need to pass laws guaranteeing what a Court has proclaimed to be a constitutional right unless and until there would be a ruling from the current Court that previous activist Justices were wrong to invent a right to a government sponsored marriage as no such right exists. If the court does take up this issue, which is unlikely IMO, and reverses the previous ruling it is likely to rule that the power to issue a government marriage license belongs to the States not the federal government so any federal laws passed now concerning who can or cannot be married would be considered unconstitutional. This is no more than virtue signaling by the Congress as it doesn't actually safeguard gay marriage at all. The only safeguard to gay marriage, should the previous ruling be reversed in that way, would be by doing so through State laws.

 

[JSRG]

The court has said they're hoping to visit the issue as soon as they can.

One (and only one) member of the court signaled an interest to return to Obergefell v. Hodges (the same-sex marriage case). That is far from "the court has said."

Don't blame Congress for taking time to address the will of their constituents in the face of unelected activist judges.

While I would agree that I can understand Congress wishing to safeguard it in case the Supreme Court does sometime down the line overturn it, I deny that it would be activist for the Supreme Court to do so, as such a thing is returing it to the democratic process. It seems to me that, when it comes to judicial review (the assessment of a law as constitutional or not), judicial activism would only be possible in cases where you strike down a law, thereby removing it from the democratic process. Between Obergefell v. Hodges and a hypothetical decision overturning it, if there is any judicial activism, it would be in Obergefell v. Hodges.

This is not to say that striking down a law is judicial activism; that would be silly. But when it comes to judicial review, I feel only decisions that strike down laws can properly be regarded as candidates for judicial activism.

I believe it was a single Justice not the entire Court that talked about revisiting the issue.

Yes, this is correct. And given the extent to which the majority opinion attempted to set the case apart from Obergefell v. Hodges, it seems rather unlikely they are particularly interested in revisiting Obergefell and similar precedent.

Until the Supreme Court rules otherwise there is no problem. The Congress does not need to pass laws guaranteeing what a Court has proclaimed to be a constitutional right unless and until there would be a ruling from the current Court that previous activist Justices were wrong to invent a right to a government sponsored marriage as no such right exists.

This, however, is not correct. While it is true there is no need to pass laws guaranteeing what the Supreme Court has ruled so long as the ruling stands, the question does remain: What if the Supreme Court changes its mind? The Supreme Court (absolutely correctly in my view) overturned Roe v. Wade. Had congress sometime in the interim passed a law codifying a right to an abortion of some kind, then that law would have remained in force. It makes a lot of sense to think "okay, in case that happens again, let's put this into the law so that if it's overturned, it won't change things."

If the court does take up this issue, which is unlikely IMO, and reverses the previous ruling it is likely to rule that the power to issue a government marriage license belongs to the States not the federal government so any federal laws passed now concerning who can or cannot be married would be considered unconstitutional. This is no more than virtue signaling by the Congress as it doesn't actually safeguard gay marriage at all. The only safeguard to gay marriage, should the previous ruling be reversed in that way, would be by doing so through State laws.

I do not see how this law would be judged to exceed the power of the federal government. When the Supreme Court ruled on the Defense of Marriage Act (a law that went the other way, being against same-sex marriage) in United States v. Windsor, I don't believe anyone, dissent or majority, thought it exceeded the power of the federal government; the debate at hand was whether it violated the Equal Protection and/or Due Process Clauses.

Indeed, the Respect for Marriage Act (the new bill in question protecting rights to same-sex marriage) does not do anything in regards to the federal government granting marriage licenses; what it does is that it prohibits states from not recognizing marriages performed in another state on the basis of "sex, race, ethnicity, or natural origin of the individuals" (in other words, a state could refuse to recognize a marriage of another state based on something like age or number of people in the marriage, but could not refuse to recognize it based on gender or race of the couple). This would seem to fall easily within the power of the federal government through the Commerce Clause, which grants congress power to regulate commerce among the states. Now, there has of course been debate as to how far this extends (note it says among the states--it says congress can regulate interstate commerce, but not intrastate commerce, and exactly what counts as which is the what prompts all the debates). However, even under a more narrow reading of the Commerce Clause, it seems to me this would easily qualify as an exercise of the Commerce Clause.

 

[SimplyMe]

I believe it was a single Justice not the entire Court that talked about revisiting the issue. Until the Supreme Court rules otherwise there is no problem. The Congress does not need to pass laws guaranteeing what a Court has proclaimed to be a constitutional right unless and until there would be a ruling from the current Court that previous activist Justices were wrong to invent a right to a government sponsored marriage as no such right exists. If the court does take up this issue, which is unlikely IMO, and reverses the previous ruling it is likely to rule that the power to issue a government marriage license belongs to the States not the federal government so any federal laws passed now concerning who can or cannot be married would be considered unconstitutional. This is no more than virtue signaling by the Congress as it doesn't actually safeguard gay marriage at all. The only safeguard to gay marriage, should the previous ruling be reversed in that way, would be by doing so through State laws.

Except that is what you are missing, if the Supreme Court did reverse Obergefell, same-sex marriage would be illegal under federal law due to DOMA. Same-sex couples, even if they could get married in a state, could not file joint federal taxes, get survivors benefits under Social Security, and could be denied any number of other rights. Most of what this law did was to remove DOMA from the books and make it so that same-sex couples, who are legally married, can continue to get federal benefits if Obergefell is overturned. It would not prevent states from "outlawing" same-sex marriage -- saying they will not issue same-sex marriage certificates or allow them to be legally married in the state -- but it would require states to honor those married in other states (or in that state before same-sex marriage becomes illegal again) to be granted marriage benefits in that state.

 

[Hank77]

I believe it was a single Justice not the entire Court that talked about revisiting the issue. Until the Supreme Court rules otherwise there is no problem. The Congress does not need to pass laws guaranteeing what a Court has proclaimed to be a constitutional right unless and until there would be a ruling from the current Court that previous activist Justices were wrong to invent a right to a government sponsored marriage as no such right exists.

How many states had abortion laws written to immediately take effect if Roe was overturned? Trigger Laws.

 

[grasping the after wind]

Except that is what you are missing, if the Supreme Court did reverse Obergefell, same-sex marriage would be illegal under federal law due to DOMA. Same-sex couples, even if they could get married in a state, could not file joint federal taxes, get survivors benefits under Social Security, and could be denied any number of other rights. Most of what this law did was to remove DOMA from the books and make it so that same-sex couples, who are legally married, can continue to get federal benefits if Obergefell is overturned. It would not prevent states from "outlawing" same-sex marriage -- saying they will not issue same-sex marriage certificates or allow them to be legally married in the state -- but it would require states to honor those married in other states (or in that state before same-sex marriage becomes illegal again) to be granted marriage benefits in that state.

First off, a decision by the Court is not a law. The court does not have to reinstate DOMA as constitutionally valid to reverse the prior court's ruling that same sex marriage, or any form of legal recognition of marriage for that matter, is a constitutional right. Should the Court rule that that the power to regulate marriage belongs to the States and not the Federal government, then no law of the federal government that made same sex marriage illegal could be considered constitutional.

Government benefits and government tax filing procedures are not rights, the federal government has the decision-making power over what benefits or largesse it affords and how individuals must file paperwork., It also has the entire responsibility and decision-making power as to who it is that will qualify for such benefits and largesse and who can file what forms. No individual is entitled to any benefit provided by the government by some right of ownership. Whatever the government provides, the government can withhold or provide to the individuals based upon whatever criterion the government decides to use.

 

[SimplyMe]

First off, a decision by the Court is not a law. The court does not have to reinstate DOMA as constitutionally valid to reverse the prior court's ruling that same sex marriage, or any form of legal recognition of marriage for that matter, is a constitutional right. Should the Court rule that that the power to regulate marriage belongs to the States and not the Federal government, then no law of the federal government that made same sex marriage illegal could be considered constitutional.

Government benefits and government tax filing procedures are not rights, the federal government has the decision-making power over what benefits or largesse it affords and how individuals must file paperwork., It also has the entire responsibility and decision-making power as to who it is that will qualify for such benefits and largesse and who can file what forms. No individual is entitled to any benefit provided by the government by some right of ownership. Whatever the government provides, the government can withhold or provide to the individuals based upon whatever criterion the government decides to use.

I don't see how that actually applies to any of what I stated. The Defense of Marriage Act (DOMA), is still law, as you more or less point out, just that is is unenforceable under the Supreme Court ruling on Obergefell v. Hodges. So, if Obergefell is overturned, DOMA once again is enforceable. Since Obergefell did not make "same sex marriage" illegal (various states allowed it prior to Obergefell), it would not be invalidated by the Supreme Court stating that the power to regulate marriages belongs to the States. In fact, Section 2 of DOMA, more or less, does just that -- it says states can determine whether or not to recognize same sex marriage -- they cannot be forced to recognize same sex marriages performed in other states (a right given to opposite sex marriages per the "Full Faith and Credit" clause in the Constitution and Federal Law).

Yes, the government can choose what benefits it gives according to the whims of the government. That is essentially what Section 3 of DOMA did, it stated that "marriage" would be defined in Federal Law to exclude same sex couples -- that per the Federal Government (when giving benefits to married couples) it would exclude all Same Sex couples.

DOMA did not seek to "regulate marriage" -- as you seem to be implying. This is why it was felt this law was important, to remove DOMA from Federal Law and ensure same sex marriages will continue to have the same protections, under Federal Law, as opposite sex marriages do if Obergefell is overturned. Just like DOMA, the Respect for Marriage Act will not "regulate marriage," it will continue to leave that to the states; just that it will make all marriages equal under Federal Law.

 

[JSRG]

I don't see how that actually applies to any of what I stated. The Defense of Marriage Act (DOMA), is still law, as you more or less point out, just that is is unenforceable under the Supreme Court ruling on Obergefell v. Hodges. So, if Obergefell is overturned, DOMA once again is enforceable.

Technically speaking, this is not true. DOMA was rendered unenforceable prior to Obergefell in Windsor v. United States. An overturn of just Obergefell would leave Windsor intact and the DOMA still struck down. That said, it is difficult to see on what rationale one could overturn Obergefell but not Windsor.

The only way I can see that being plausible is to say Obergefell and Windsor both erred in their rationale, but Windsor could be saved by saying it exceeded the Commerce Clause's power for the federal government to regulate marriage like that (interestingly, one of the dissents in Windsor, while disagreeing with the majority's reasoning for striking it down, did suggest that they could be persuaded that it was unconstitutional n the basis of the Commerce Clause, but no one had brought it up). However, in that case, it would mean the new law would be unconstitutional for the same reason.

DOMA did not seek to "regulate marriage" -- as you seem to be implying. This is why it was felt this law was important, to remove DOMA from Federal Law and ensure same sex marriages will continue to have the same protections, under Federal Law, as opposite sex marriages do if Obergefell is overturned. Just like DOMA, the Respect for Marriage Act will not "regulate marriage," it will continue to leave that to the states; just that it will make all marriages equal under Federal Law.

As far as I understand the new law proposed, that is not the case. The law prohibits states from refusing to recognize, on the basis of sex, race, ethnicity, or national origin, marriage performed in other states; in other words, they have to accept them as marriages. The only difference between the current situation and a situation in which Obergefell/Windsor is overturned with this law in existence is that a same-sex couple might have to take the extra step of going to another state to perform the ceremony, but otherwise it is the same situation as now in forcing states to recognize the marriages.

 

[hislegacy]

There had been some action on this before the election, but now that GOP senators are free to vote their conscience, it looks like at least 10 of them will join the Democrats in making SSM the law of the land, assuming this report is accurate.

Same-sex marriage has been legal nationwide since 2015, when the Supreme Court ruled that same-sex couples are guaranteed the fundamental right to marry under the Constitution. But after the now-conservative court struck down Roe v. Wade in June ― tossing out nearly 50 years of precedent on reproductive rights ― Democrats and some Republicans are anxious about the court’s plans for weakening other civil rights.

And because the Senate plans to take the House bill [passed in July] and simply amend it, versus senators introducing an entirely new bill, the House only has to vote to accept the changes to their bill versus starting the process over again.

All 50 Democratic senators have said they’d support legislation to codify same-sex marriage. That means the Senate bill needs at least 10 Republicans to support it, too, in order to overcome a filibuster. So who are they?

So far, the only GOP senators saying anything about this week’s forthcoming bill are the three who are in the bipartisan group that helped get a deal on the bill in the first place: Sens. Susan Collins (Maine), Rob Portman (Ohio) and Thom Tillis (N.C.).

How did that action go - did they do it by the end of the week?

 

[Hans Blaster]

How did that action go - did they do it by the end of the week?

They did. That Wednesday the Senate voted 62-37 to invoke cloture on the motion to proceed and then later that week passed the motion to proceed.

A vote on cloture of the amendment/bill is scheduled for Monday evening and if passed a vote on final passage in the Senate would be expected sometime on Tuesday.

 

[Lulav]

There had been some action on this before the election, but now that GOP senators are free to vote their conscience, it looks like at least 10 of them will join the Democrats in making SSM the law of the land, assuming this report is accurate.

Same-sex marriage has been legal nationwide since 2015, when the Supreme Court ruled that same-sex couples are guaranteed the fundamental right to marry under the Constitution.

So why do they need codification?

to protect same-sex and interracial marriage

Interracial marriage? What are we living in the 50's? What does one have to do with the other? I see it as adding the racial aspect to be the lure to pass this bill.

We all have the right to make our own choices whether or not other human agree or approve.
I am a whole food ethical vegan and do not believe humans eating flesh and blood is positive for the animals,
the environment, or for human health. However, most humans in the world are omnivores and choose
to eat flesh and blood from murdered animals. And that is the choice they have the right to make.
I am also a lesbian whether someone else approves of that or not. I have the right to love another adult
woman, and feel I have the right to "marry" that woman and make a commitment to her. Who is anyone
to tell me I am wrong, and must be heterosexual and love a man?. That would be both judgemental and hateful.
God is the only judge, and created me and the woman I love. I am proud of who I am and do not need to be
'converted", deprogrammed, or told I am wrong in any way for who I am. Peace be with you.

But do you feel you need secular laws to protect your opinions over the one you say is your creator?

 

[Hans Blaster]

So why do they need codification?

Because in a concurring opinion in Dobbs (the abortion ruling) J. Thomas listed several other (not abortion) items previously decided by the Supreme Court that were questionable based on the "theory" of the Dobbs decision. SSM was one of those.

Interracial marriage?

Interracial marriage was the only similar SC ruling that was missing from the list. One gets the distinct impression that the only reason it was left of of the list was that J. Thomas didn't want to call for the invalidation of his own interracial marriage.

What are we living in the 50's?

Some people are trying.

What does one have to do with the other? I see it as adding the racial aspect to be the lure to pass this bill.

Both involve the right to be married to the adult of your mutual choosing.

But do you feel you need secular laws to protect your opinions over the one you say is your creator?

Secular laws are the only ones that are valid in the American legal system.

 

[JSRG]

Interracial marriage was the only similar SC ruling that was missing from the list. One gets the distinct impression that the only reason it was left of of the list was that J. Thomas didn't want to call for the invalidation of his own interracial marriage.

This assertion makes little sense (not that that has stopped people from making it), for two reasons.

First, Loving v. Virginia ruled the laws prohibiting interracial marriage were unconstitutional as they violated both the Equal Protection Clause and the Due Process Clause. Thomas's issue with Obergefell, Griswold, and Roe were that they were decided on what he regards as a misapplication of the Due Process Clause. If his view were to prevail, Loving v. Virginia could easily be upheld simply on the basis of the Equal Protection Clause, which was actually was the primary rationale that Loving v. Virginia gave; the Due Process Clause argument is only briefly mentioned in the opinion as an alternate rationale.

Second, if Loving v. Virginia were overturned... it would not cause the invalidation of his own interracial marriage, or that of anyone else in the United States. To my knowledge, no state in the country has any law on the books against interracial marriage anymore (while Loving v. Virginia did render such laws unenforceable, every state that technically had them on the books later repealed them). That would mean that a state would have to re-enact such a law, despite the fact that approval of interracial marriage is extremely high in every part of the country. Let me put it into perspective: Based on polls, a higher percentage of Americans approve of interracial marriage than believe the Earth is round.

U.S. Approval of Interracial Marriage at New High of 94%

Ninety-four percent of U.S. adults now approve of marriages between Black people and White people. Just 4% approved when Gallup first asked the question in 1958.

news.gallup.com

Only Two-Thirds Of American Millennials Believe The Earth Is Round

Millennials in America sometimes get a bad reputation, this time for good reason. A recent survey found that just 66 percent of young adults aged 18 to 24 years old have "always believed the world is round."

www.forbes.com

The only way someone would get "the distinct impression that the only reason it was left of of the list was that J. Thomas didn't want to call for the invalidation of his own interracial marriage" is if they were completely clueless about what Thomas's problem with Roe/Obergefell/Griswold even was, the rationale for Loving v. Virginia, whether there are any anti-miscenegation laws in the United States still, and how unpopular it would be to re-enact such laws.

 

[essentialsaltes]

Senate to vote Tuesday on final passage of same-sex marriage bill​

The Senate is set to vote Tuesday on final passage of a bipartisan bill to protect same-sex and interracial marriage.

The chamber on Monday night reached an agreement to hold three amendment votes starting at 3:45 p.m. ET before a final passage vote. The bill is expected to pass the Senate. The House would then need to approve the legislation before sending it to President Joe Biden’s desk to be signed into law.

While the bill would not set a national requirement that all states must legalize same-sex marriage, it would require individual states to recognize another state’s legal marriage.

 

[essentialsaltes]

It passed the Senate.

The 12 Republican senators who voted “yes” were Roy Blunt (Mo.), Richard Burr (N.C.), Shelley Moore Capito (W.Va.), Susan Collins (Maine), Joni Ernst (Iowa), Cynthia M. Lummis (Wyo.), Lisa Murkowski (Alaska), Rob Portman (Ohio), Mitt Romney (Utah), Dan Sullivan (Alaska), Thom Tillis (N.C.) and Todd C. Young (Ind.). (Same 12 that prevented the filibuster.)

 

[essentialsaltes]

The bipartisan bill is now headed for Biden's desk:

House passes bill to protect same-sex marriage in landmark vote sending it to Biden​

The House voted to pass legislation on Thursday to protect same-sex and interracial marriage, the last step before the measure goes to President Joe Biden for his signature and becomes law.

The House vote was 258 to 169 with 39 Republicans joining the Democrats voting in favor. Loud applause broke out in the chamber when the vote was gaveled to a close.