Same-Sex Marriage Isn't Going Anywhere

The Respect for Marriage Act and Public Opinion Make That Clear

Apologies for the lack of content lately. I’ve published a few things that would ordinarily have a home here at other places. Additionally, my workload since the election has been rather heavy. If you don’t see anything else here before the holidays, I wish you and yours the best.

If you’re looking for an area in our society that’s driving hyper-partisanship, you need look no further than the culture wars. The Supreme Court’s holding that took down the precedent in Roe v. Wade and abortion was a significant issue in the 2022 midterm election. Culture war issues favored by Republicans failed to resonate as much as abortion did for Democrats in that cycle. However, Republicans pushed an anti-transgender ad in the 2024 presidential election that appears to have helped them win back the White House.

Republican proponents of the culture wars may put other issues in their sights. For example, a state representative in Michigan, Josh Schriver, recently tweeted, “Make gay marriage illegal again. This is not remotely controversial, nor extreme.”

Although Schriver undoubtedly believes what he tweeted, he likely knows that making same-sex marriage “illegal” isn’t going to happen. His tweet was likely an attempt to get attention. He succeeded. In subsequent comments The Detroit News, Schriver cited a biblical justification for his tweet. He also called the Supreme Court’s holding in Obergefell v. Hodges (2015) “perverted.”

Of course, we live in a diverse society with many different religious points of view or, in some cases, people who don’t believe in any religion. Every person is entitled to his or her beliefs—political or religious. That’s a feature of America, not a bug. Schriver is free to believe what he wants. His religious liberty is protected by the First Amendment. Just the same, the Constitution is a fundamentally secular document, and the First Amendment erected a wall separating church and state.

Still, Schriver’s comments highlight a serious lack of awareness about the policy and politics of same-sex marriage, as well as the lack of knowledge of the background of his religious-based justification for his opposition to same-sex marriage. Tackling the latter first, The Detroit News points to Matthew 19:3-6 as his justification. These passages quote Jesus of Nazareth on the account of creation from Genesis 1 in reference to Adam and Eve. Most biblical scholars don’t take a literal view of the account of creation, viewing it instead as a cultural or theological narrative.

What’s interesting is how those who practice Christianity have renegotiated many prohibitions in the Hebrew Bible or the New Testament. For example, the same passages that The Detroit News mentioned also quote Jesus of Nazareth’s opposition to divorce, which is common in our society, including among evangelical Christians. In 1 Corinthians 11:4–16, Paul of Tarsus wrote that women should have their heads covered when they pray. Although 1 Timothy is generally considered pseudepigrapha (meaning not written by Paul of Tarsus), the author writes in 2:9 that women should avoid braided hair, jewelry, and other costly items. Slavery is never condemned in the New Testament. In fact, there are instructions to slaves in Ephesians 6:5–8 and Colossians 3:22–25 to obey their masters.

Again, each of these instructions or acceptance of cultural norms among 1st-century Christians in the Roman Empire have been renegotiated as society evolved. Still, some hold on to perceived condemnation of homosexuality in passages like Romans 1:26-27, 1 Corinthians 6:9-11, and 1 Timothy 1:8-11. There’s a growing debate among biblical scholars that the Greek words used in these verses—malakoi and arsenokoitai—don’t actually reference homosexuality as we understand it today. (For those interested, arsenokoitai wasn’t translated as “homosexual” until 1946.) Even if one were to point to passages from the Hebrew Bible—Leviticus 18:22 and Leviticus 20:13—many other sins outlined in the Pentateuch are no longer considered sins because of cultural changes.

None of this is a slight to anyone of the Christian faith, but we need to contextualize the Hebrew Bible and the New Testament as reflecting the times in which they were written and realize that the views of some instructions to followers of pre- and post-exilic Judaism and early Christians have changed over time. Even Jesus of Nazareth’s brother, James, and Peter had a disagreement with Paul of Tarsus over whether Christians needed to first convert to Judaism before becoming Christians. This disagreement is outlined in Galatians 2. Obviously, Paul of Tarsus won that debate after Christians in Jerusalem were nearly wiped out in the rebellion against Roman rule led by Simon bar Kokhba in the 2nd century.

But what are the policy and politics of same-sex marriage? There are always going to be those in our society who oppose it; Schrivner being among them. Again, that’s a feature, not a bug, of the American ideal. Notwithstanding Schrivner’s point of view, same-sex marriage isn’t going away, and even many social conservatives seem to accept that as a reality. Let’s go through why.

The Supreme Court’s Holding in Obergefell

The Supreme Court established a fundamental right to marry in Loving v. Virginia (1967). At issue in the case was a Virginia law that criminalized interracial marriage. Richard Loving, a white male, married Mildred Jeter, who was an African-American female, in Washington, DC in June 1958. The Lovings were indicted for violating the prohibiting on interracial marriage and pleaded guilty and faced the minimum of a one-year prison term. However, the Caroline County, Virginia trial court judge, Leon Bazile, gave the Lovings a suspended sentence on the condition that they left the Commonwealth for 25 years.

Bazile wrote in his opinion, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.” The Lovings moved to Washington, DC but continued to fight what was an unjust and racist law.

The Supreme Court unanimously sided with the Lovings. Chief Justice Earl Warren authored the opinion and left no equivocation about the question. He wrote, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

In 1993, President Bill Clinton issued the “don’t ask, don’t tell” policy that prohibited gay or lesbian individuals from openly serving in the military. After gaining significant political power in Congress in the 1994 midterm elections, Congress slowly began turning its attention toward cultural issues. Congress passed the Defense of Marriage Act (DOMA) in 1996, which was signed into law by President Clinton. DOMA was constitutionally problematic because it allowed states that prohibited same-sex marriages from recognizing those performed in states that did. It also defined marriage as “one man and one woman” for purposes of federal law.

In 2003, Massachusetts became the first state to allow same-sex marriages. The ruling by the Massachusetts Supreme Judicial Court had the effect of setting off a firestorm of states moving to define marriage as “one man and one woman.” In some cases, states took the additional step of prohibiting civil unions, and domestic partnerships. In total, 11 states passed at least a ban on same-sex marriage in 2004 alone. More states would follow suit in 2005 and after. Thirty-one states banned same-sex marriage via constitutional amendments while three others had statutory bans.

Additionally, President George W. Bush began to push a federal constitutional amendment to define marriage as “one man and one woman” because he believed DOMA could face legal challenges that would result in the law being struck down. The constitutional amendment was originally proposed in May 2002 by then-Rep. Ronnie Shows (D-MS). Another version was introduced in May 2003 by then-Rep. Marilyn Musgrave (R-CO). Although the Federal Marriage Amendment (FMA) hasn’t passed either chamber, the House did vote on a different version of the FMA in September 2004. The FMA lacked the required two-thirds of the chamber for passage, and it failed. The House voted on the issue again in July 2006, and the FMA failed again. The vote in July 2006 was the last either chamber would take on the FMA, and, to this author’s knowledge, the FMA hasn’t been reintroduced since February 2015.

Over time, federal courts began to look at DOMA, particularly Section 3 of the law, which defined marriage as “one man and one woman” for federal purposes. In 2013, the Supreme Court issued its opinion in United States v. Windsor. This case related to an exemption from estate taxes for surviving spouses. Edith Windsor sought the exemption after her spouse, Thea Spyer, passed away in 2009. The couple was married in Canada but lived in New York, which recognized same-sex marriages performed elsewhere. Because federal law didn’t recognize same-sex marriages, Windsor was forced to pay more than $363,000 in taxes on Spyer’s estate. She sued on the grounds that Section 3 of DOMA violated the Equal Protection Clause of the Fourteenth Amendment.

A majority of the Court agreed with Windsor. Justice Anthony Kennedy wrote for the majority, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

Windsor showed that the writing was on the wall; that eventually same-sex marriage DOMA would be overturned and that states would be required to recognize same-sex marriages performed in other states. No different than a driver’s license.

That case would come just two years later in Obergefell. The Court’s holding in Obergefell reaffirmed the fundamental right to marry under Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and effectively legalized same-sex marriages in every state, regardless of state constitutional prohibitions or statute. Once again, Justice Kennedy wrote the majority opinion.

Congress Has Protected Same-Sex Marriage

Justice Clarence Thomas raised eyebrows when he suggested in his concurrence in Dobbs v. Jackson Women’s Health Organization (2022) that the Supreme Court should revisit precedent in Griswold v. Connecticut (1965), Lawrence v. Texas (2003) and Obergefell. Griswold established the right to contraception and Lawrence struck down a Texas law criminalizing same-sex relations. Although Justice Thomas may indeed be a vote to undo those prior holdings, his concurrence in Dobbs in respect to these precedents has more to do with how the Court determined these rights.

Justice Thomas has, for years, found fault in the Court’s approach to using the Due Process Clause to incorporate rights rather than using his preferred method of the Privileges or Immunities Clause of the Fourteenth Amendment. Regardless, the words were taken as a threat against these rights, which kicked the ball squarely in the jurisdiction of Congress.

Congress responded in December 2022 with the Respect for Marriage Act. The legislation repealed Section 2 of DOMA and gave full and faith credit to same-sex marriages, regardless of where they were performed. Essentially, if Obergefell is ever overturned, same-sex marriages must be recognized across state lines, including states that have banned it. The Respect for Marriage Act also includes religious liberty protections protected by the Constitution and federal law, including First Amendment protections to religious or faith-based nonprofits.

Can Congress change the law? Sure. Are the votes there to change the law? No. Although Republicans will hold 53 seats in the Senate in the upcoming Congress, eight sitting Republican senators—Shelley Moore Capitol of West Virginia, Susan Collins of Maine, Joni Ernst of Iowa, Cynthia Lummis of Wyoming, Lisa Murkowski of Alaska, Dan Sullivan of Alaska, Thom Tillis of North Carolina, Todd Young of Indiana—voted for the Respect for Marriage Act. Although Sen. Mitt Romney (R-UT) is leaving the Senate, his successor, John Curtis, voted for the legislation in the House. Considering Republicans need 60 votes to advance most legislation in the Senate, the Respect for Marriage Act isn’t going anywhere. Republicans also lack the votes in the House since most of the members who voted for the Respect for Marriage are still serving.

In other words, if Schriver gets his way, Michigan would still have to recognize same-sex marriages performed in a state that allows them. In hindsight, had states spent the early 2000s unwinding government involvement in marriage rather than further involving government in it, this conversation would’ve been different.

Same-Sex Marriage Has Strong Support

In June, Gallup released its lastest polling on Americans’ sentiment toward same-sex marriage. The polling firm has found a majority of support among Americans since May 2011. The results released in June 2024 show that 69 percent of Americans believe same-sex marriages should be recognized as valid. That’s down slightly from 71 percent in May 2023. Nearly 75 percent of independents say same-sex marriages should be recognized as valid. Nearly 65 percent of Americans view same-sex relations as morally acceptable.

Similarly, the Public Religion Research Institute (PRRI) released results of a survey on LGBTQ issues in March 2024 and found that 67 percent of Americans support same-sex marriage. There’s significant support among many religious groups, including White and Hispanic Catholics, White mainline (non-evangelical) Protestants, and adherents of Judaism. Fifty-five (55) percent of Black Protestants also support same-sex marriage. Interestingly, Muslims are slightly more likely to support same-sex marriage than White evangelical Protestants, 43 percent to 40 percent.

Support exists across the age groups measured by PRRI. Even among those 65 and older, support for same-sex marriage exceeds 60 percent. There were only two states where a majority of support for same-sex marriage wasn’t found—Arkansas and Mississippi. Looking at the states that decided the 2024 presidential election, 69 percent of Arizonans support same-sex marriage, 61 percent of Georgians, 69 percent of Michiganders, 65 percent of North Carolinians, 76 percent of Nevadans, 66 percent of Pennsylvanians, and 73 percent of Wisconsinites support same-sex marriage.

Perhaps most tellingly, the Republican Party’s platform no longer defines marriage, as the 2016 platform stated, “between one man and one woman.” The 2016 platform also “condemn[ed]” the Supreme Court’s holdings in Windsor and Obergefell. That language no longer appears in the Republican Party platform, as adopted by delegates in Milwaukee in July 2024. There’s only one mention of marriage, as platform says, “Republicans will promote a Culture that values the Sanctity of Marriage, the blessings of childhood, the foundational role of families, and supports working parents.”

The shift in the platform may be because, in addition to broad support for same-sex marriage from the public, the LGBTQ community isn’t monolithic in its political views, as polling from the Independent Center and the Bullfinch Group found in February 2024. At the time of the survey, the top issues for LGBTQ+ voters were jobs and the economy, immigration, abortion, and healthcare.

The Bottom Line

Generally, Millennial and Gen Z voters and independents are worried about affordability issues. They’re worried about putting food on the table and being able to pursue the American Dream, not only for themselves but also for their children. The culture wars only serve to divide Americans, and they’re being fought on the fringes. That’s not to say that difficult conversations about culture issues aren’t necessary, but those conversations aren’t possible right now because they’re treated as political footballs for grifters who are trying to get social media clout.