A look at pending legislation to protect same-sex marriages

WASHINGTON — The Respect for Marriage Act, now pending in the Senate, would ensure that same-sex marriages are still legally recognized nationwide if the Supreme Court were to overturn its 2015 Obergefell v. Hodges decision that declared a constitutional right for gay couples to wed.

The House-passed legislation has some Republican support and is expected to come up for a vote in September. It is part of an effort by Democrats to protect various rights after Supreme Court decision last month to overturn Roe vs. Wade, which legalized abortion in all states.

While the Senate is not expected to approve separate House bills to legalize abortion or protect contraception rights, the same-sex marriage legislation has a real shot at passage after a handful of Republican senators indicated they would vote for it. Democrats need 10 GOP votes to overcome a filibuster and get the legislation through the 50-50 Senate.

The bill is designed to protect same-sex marriages after Justice Clarence Thomas suggested in a concurring opinion that the Obergefell decision upholding gay marriage should also be reconsidered.

The legislation wouldn’t codify, or enshrine into law, Obergefell, which now requires states to issue same-sex marriage licenses. If the bill were passed and Obergefell were later overturned, some states could stop issuing those licenses, but all states would still have to recognize same-sex marriages performed legally in other states.

The practical effect of that would be that some people couldn’t get married in their own states, but all same-sex marriages would continue to be recognized and eligible for the legal benefits of marriage.

Wisconsin Sen. Tammy Baldwin, the lead Democrat pushing the bill in the Senate, says the legislation was written that way because marriage is currently regulated by the states, not the federal government. Any legislation requiring federal regulation of marriages would be unlikely to garner enough support to pass.

If Obergefell were overturned today, federal law would partially revert to a 1996 statute called the Defense of Marriage Act. That legislation allowed states not to recognize same-sex marriages and legally defined the word “marriage” as a union between one man and one woman.