II. An Unlikely Coalition: Passing the Respect for Marriage Act

Leading conservatives in the United States have long opposed same-sex marriage, whether they have nuanced their views to backing civil unions or outright expressed support for constitutional amendment banning it. Thus, when the House voted in July 2022 on the Respect for Marriage Act—which codified interracial and same-sex marriage rights—it came at a surprise that many Republican supported the bill. The New York Times characterized this vote as political maneuvering by Democrats in election year, but it ultimately led to successful congressional action (Karni 2022a). However, this is not the first attempt to pass federal legislation around this issue. This paper asks why, despite previous iterations of the Respect for Marriage Act failing, marriage equality achieved success in 2022 (Migdon 2022).

In this paper, I will start by reviewing key policies around same-sex marriage in United States history. I then move to discuss the premise of the Respect for Marriage Act itself. From the building of a historical timeline and the situating of the law in the present, I develop my arguments by identifying three key factors driving the law’s success: the Supreme Court, interest groups, and electoral politics. First, I argue that the Supreme Court’s Dobbs v. Jackson (2022) decision overturning abortion protections created urgency to codify interracial and same-sex marriage as it challenged the longstanding doctrine of stare decisis. Second, I argue that the broad coalition of interest groups supporting the law helped ground support for it from a variety of angles. Third, I argue that Republican members of Congress in competitive districts saw this law as an opportunity to take a policy position ahead of the 2022 midterm elections. I find evidence to support all of my arguments and, together, they created the unlikely coalition in an otherwise polarized political environment to pass the Respect for Marriage Act. I wrap up by discussing some additional avenues for policy making.

‍Marriage Policy in American History

Prior to the passage of the Respect for Marriage Act, interracial and same-sex marriage rights were protected by the Supreme Court cases of Loving v. Virginia (1976) and Obergefell v. Hodges (2015) respectively. In the Loving case, two Virginians—one Black and one white—were charged with and pled guilty to violating the state’s ban on interracial marriage. The couple appealed their case to Virginia’s highest court where it was upheld, but the Supreme Court reversed that decision and found interracial marriage bans unconstitutional for violating the Fourteenth Amendment’s clauses on equal protection and due process. In Obergefell, the Supreme Court ruled that the Fourteenth Amendment requires states to refinish same-sex marriages performed in other states. Fourteen same-sex couples and two individuals with deceased same-sex partners had their separate lawsuits against the definition of marriage—as between one man and one woman—in four Midwestern states combined. Federal district courts agreed with the plaintiffs in each case, but the Sixth Circuit disagreed on appeal after it consolidated all of the cases together. The Supreme Court then reversed the Sixth Circuit’s decision, finding that the Fourteenth Amendment required states to “license a marriage between two people of the same sex” and to recognize those marriages when performed in another state.

While Loving was decided half a century ago, Obergefell’s protections have been comparatively more recent. That decision set a uniform standard to recognize same-sex marriage nationwide, but there previously existed numerous a patchwork consisting of judicial decisions and laws at the federal, state, and local levels that contained varying provisions and represented both victories and setbacks for advocates.

The regulation of marriage is a state issue (Miller 2013). As such, much government action on the issue has taken place at the state level. This authority was ceded based on a Minnesota case in which the Minnesota Supreme Court found no constitutional right for same-sex couples to marry in Baker v. Nelson (1971). While the plaintiffs appealed to the Supreme Court, it declined to hear that case, writing that “the appeal is dismissed for want of a substantial federal question” (Rodak and Lorson 1972). That set a precedent for federal courts seeing similar cases going forward.

The first state law banning same-sex marriages was enacted in Maryland in 1973 (Wolf 2015). Several other states followed suit in the decades following. Pursuit of marriage equality sat largely dormant until the Hawaii Supreme Court remanded Baehr v. Lewin (1993), that “the right to equal protection afforded same-sex couples the same right to marriage licenses as heterosexual couples, based on the anti-gender-discrimination provisions of the Hawaii Constitution” (Klingeman and May 1994). Remanded to lower courts, the verdict in now-Baehr v. Miike (1996) was that the state had to begin issuing marriage licenses to same-sex couples though this was stayed. Political backlash ensued. The state legislature passed a constitutional amendment against same-sex marriage and presented it to voters as Amendment 2 in the 1998 election which was approved by a landslide 70 percent of Hawaii’s voters (Christie 2010). This led to the Hawaii Supreme Court reversed itself in 1999 in recognition of voter will through the constitutional amendment. The Hawaii legislature would bills to legalize civil unions in 2001, 2003 and 2007, but these would all fail (Christie 2010).

The Hawaii case drew national attention. Part of this attention led to the passage of the Defense of Marriage Act which happened on the same day that the trial in Baehr started (Issenberg 2021). The Defense of Marriage Act prevented federal recognition of same-sex marriages, even if they were legally performed under state law, and defined marriage as between a man and a woman. The section concerning federal recognition would later be ruled unconstitutional by the Supreme Court in United States v. Windsor (2013) for it violated the Due Process Clause. In a turn of events, Windsor helped usher in federal consideration of same-sex marriage that previously was restricted under the Baker precedent. The entirety of the Defense of Marriage Act would be overruled in Obergefell.

Vermont became the first state to establish civil unions for same-sex couples in 2000 (Goldberg 2000). This was a result of the Vermont Supreme Court finding the ban on same-sex marriage as unconstitutional in Baker v. Vermont (1999). Neighboring Massachusetts went further, marking a turning point for marriage equality when it legalized same-sex marriage in 2004. The Massachusetts Supreme Court ruled in Goodridge v. Department of Public Health (2003) that the state constitution gave same-sex couples the right to marry. With Massachusetts setting a milestone, more states began to legalize same-sex marriage in subsequent years.

‍Figure 1: Same-Sex Marriage Legality Pre-Obergefell

Source: Author and Washington Post (2015)

While some states saw marriage equality, there were also notable retrenchments. In California, the nation’s largest state, voters passed Proposition 8 in the November 2008 elections to amend the state constitution and ban same-sex marriage (Garrison et al. 2008). This followed the California Supreme Court’s finding in In re Marriage Cases (2008) that the state constitution protects same-sex couples’ rights. The state’s constitutional ban was challenged in federal courts with the district court finding for the plaintiffs to overturn Proposition 8. The Ninth Circuit agreed and the Supreme Court agreed to hear the case as Hollingsworth v. Perry (2013). However, the Supreme Court did not wade into the constitutionality of Proposition 8, but rather focused on the issue of standing as California had declined to defend the law. Instead, ballot initiative proponents assumed a defense, but the Supreme Court rejected their position for lack of standing.

The Hollingsworth and Windsor decisions precipitated the Supreme Court’s consideration of same-sex marriage directly in Obergefell. In the years leading up to Obergefell (and including when the aforementioned two cases were decided), same-sex marriage was at the forefront of political debates. In May 2012, President Barack Obama generated national and international attention when he announced his support for same-sex marriage. In an interview with ABC News, he said that “I think same-sex couples should be able to get married” (Earnest 2012). Just days before the President’s announcement, then-Vice President Joe Biden had told NBC’s “Meet the Press” that “I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties” (Barbaro 2012). 

While political support at the highest level of American government was a turning point for marriage equality, public support should not be ignored (see Figure 2). Public support for same-sex marriage grew from 27 percent in 1996 to a record high of 71 percent in May 2022 (McCarthy 2022). In May 2015, one month before Obergefell was decided, 60 percent of American adults believed that same-sex marriages should be valid. Baunach (2012) characterizes the changes in these attitudes as reflective of a cultural shift. The Obama-Biden White House had echoed that characteristic when Vice President Biden noted work towards a “national consensus” on same-sex marriage in 2010 (Barbaro 2012).

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Figure 2: Public Support for Same-Sex Marriage

Source: Author and Gallup (McCarthy 2022)

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Before Obergefell, same-sex marriage was legal in 37 states and Washington D.C. (see Figure 1). The 13 remaining states where it was not legal were concentrated in the Midwest and the South. Today, same-sex marriage is legal nationwide. With that being said, there are also more recent efforts by states to reinforce protections for same-sex marriage. In 2024, three states passed ballot measures that explicitly protect the right to marry (Sosin 2024). California voters approved Proposition 3 to officially remove the language prohibiting same-sex marriage with over 62 percent of the vote, essentially overturning Proposition 8. State Senator Scott Weiner, a Democrat who represents San Francisco, told CalMatters that “we need to get this discriminatory provision out of the California constitution” (Echelman 2024). Similarly, Hawaii voters also overturned a piece of their marriage equality history. By a similar margin—nearly 69 percent of the vote to 70 percent of the vote in 1998—they removed the limitation of marriage established from Amendment 2. Colorado voters also removed discriminatory language from their state constitution, with over 64 percent of the vote.

Like these voter actions in California, Colorado, and Hawaii, the Respect for Marriage Act did not set out to expand same-sex marriage rights nor does it in practice beyond what has already been established through the Supreme Court’s Obergefell decision. However, the law  adds an additional layer of protection to them alongside interracial marriage rights for reasons that I will delve into in subsequent sections of this paper.

‍Premise of the Law: What is the Respect for Marriage Act?

The Respect for Marriage Act repeals the Defense of Marriage Act and codifies federal and interstate recognition of interracial and same-sex marriage with protections for religious freedom. The Respect for Marriage Act unifies the landmark Loving and Obergefell cases together into one law. At the beginning of the law’s text, it stipulates the following three things:

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1. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”
2. “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
3. “Millions of people, including interracial and same-sex couples, have entered into marriages and have enjoyed the rights and privileges associated with marriage. Couples joining in marriage deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.”

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Specifically, the law does the following:

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• Repeals the Defense of Marriage Act
• Federal recognition of marriages involving 2 individuals, legally performed (under the law at the time) in states or state-equivalents
• Religious organizations and their employees do not have to provide “services, accommodations, advantages, facilities, goods, or privileges” for marriages
• Ensures no entity loses any right (unless it is connected to marriage) from the law
• No federal recognition of polyamorous marriages

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Representative Jerry Nadler, Democrat of New York, introduced H.R.8404, the Respect for Marriage Act, into Congress on July 18, 2022. It passed the House (see Table 1) just one day after its introduction with an unexpectedly bipartisan vote of 267-157, in which forty-seven Republicans joined all Democrats in support. Later in the year, with key modifications to the bill’s language in support of religious liberty, it passed the Senate with a filibuster-proof 61-36 vote (see Table 2). After a second vote in the House (see Table 3) to accept the Senate’s amendments—albeit with slightly reduced Republican support— it was signed into law by President Joe Biden on December 13, 2022. 

‍Impact of the Supreme Court

The Supreme Court’s controversial Dobbs decision created a domino effect leading to the passage of H.R.8404. By overturning the precedents that it set regarding abortion in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the Court strayed from the doctrine of stare decisis—a Latin term that means “to stand by things decided”—which “involves a court’s choice to stand by a precedent notwithstanding suspicions (or worse) about its wrongness” (Kozel, 2010, p. 412). While Segal and Spaeth’s (1996) foundational study examining stare decisis found that Supreme Court justices are not influenced by the doctrine in deciding both landmark and non-landmark cases that come before them, the Supreme Court has, at other times, valued the doctrine. As Kozel quotes, the Court has referred to it as of “fundamental importance to the rule of law” helping to “the evenhanded, predictable, and consistent development of legal principles” and building trust towards the “actual and perceived integrity of the judicial process” (p. 413).

The overruling of Roe and Casey had direct implications that helped the Respect for Marriage Act. Believing that the Supreme Court would potentially be inclined to overlook stare decisis again and rule against other rights as it did on abortion, members of Congress mobilized to codify marriage rights on their own via law. Scholarship, both prior and after the Dobbs decision, reinforces this belief. Michael Gentithes (2022), at the University of Akron, states: “Dobbs accelerated the Court’s path towards a new precedent on precedent, one which allows Justices to overrule decisions based upon a substantive disagreement with the reasoning in that decision rather than any special justifications outside of a substantive critique” and that weakened stare decisis “threatens to undermine legal stability in all areas of constitutional law.” Leonard Niehoff (2023), of the University of Michigan, wrote “after Dobbs, everything we think we know about the Constitution seems up for grabs and may be.” Finally, Nina Varsava (2023), at the University of Wisconsin-Madison, argues that “the Justices’ refusal to recognize the reliance interests at stake here is inconsistent with the Court’s previously prevailing stare decisis jurisprudence and is also mistaken as a matter of first principles, undermining basic rule of law values that stare decisis is meant to protect.”

The ambiguity created with Dobbs was further exacerbated by the polarized nature of the Supreme Court. The death of Justice Ruth Bader Ginsburg, a member of the court’s liberal bloc, in the runup to the 2020 election expanded the Court’s 5-4 conservative majority to 6-3 when President Donald Trump appointed a conservative justice, Amy Coney Barrett, to fill the vacancy (Howe, 2020). Viewing the Court through the lens of the pivotal politics model, the liberal minority could previously seek its preferred judicial outcome with the agreement of one conservative justice as the median vote. With the confirmation of Justice Barrett, that task becomes steeper with the need for the agreement of a second conservative justice. While Chief Justice John Roberts sought to rebuke judicial politicization during the Trump administration by saying “we do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the reality is that there is a tug of war operating behind the scenes that has made justices on the bench much more susceptible to ideological sorting (Sherman, 2018). Proposed by Bonica and Sen (2020), the judicial tug of war arose because politicians—the selector of judges—are generally more ideologically diverse than lawyers who are more liberal and form the primary selection pool for judges. Politicians center ideology and partisan values in the selection process to “assert” more power over lawyers because of their ideological imbalance. As a result, “conservative politicians prefer conservative judges and liberal politicians prefer liberal judges” (Bonica and Sen, 2020). Although Bonica and Sen examined the entire federal judiciary, the nomination process for Supreme Court justices exemplify the tug of war. On Barrett's confirmation, Senator Chuck Schumer, Democrat of New York, described her views as “far-right [and] out-of-the-mainstream” (Howe, 2020). She was confirmed on a party-line vote, with all Democrats and one Republican in opposition (U.S. Senate, 2020).

Law that has undergone the legislative process is much more enduring. While the Supreme Court can set case law—“law that is based on judicial decisions”—it can just as easily reverse itself like it did in Dobbs (Wex Definitions Team). Congress is able to circumvent the impermeability of case law that could be easily overturned with a shift in the court’s ideological balance through its own legislation. In the case of H.R.8404, there was an explicit threat of a potential judicial reversal of previous court decisions upholding same-sex marriage rights. In his concurrence to the Dobbs opinion, Justice Clarence Thomas wrote “in future cases, we [the justices of the Court] should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” This signaled to lawmakers that the right to same-sex marriage found by the Court in the Obergefell decision was at risk.

Congressman Nadler (2022), who introduced H.R.8404, said as much in a speech on the House floor urging the chamber to pass the bill: “even if we accept the Court’s assurance in Dobbs that its decision does not call other rights into question, Congress should provide additional reassurance that marriage equality is a matter of settled law.” In short, Nadler argued that the Court couldn’t be relied upon to protect same-sex marriage and this necessitated congressional action, a perspective validated by the case of Justice Brett Kavanaugh. During his Senate confirmation hearings, responded to questions from Senator Susan Collins, Republican of Maine, that he viewed Roe to be “settled law” (Schauer 2018). Despite that, he voted to overrule Roe and Casey in Dobbs. The ideological division on the Court combined with its willingness to overrule precedent provided supporters of the Respect for Marriage Act the backdrop they needed to unveil the law in Congress. 

‍Stature of Coalescing Interest Groups

As part of a press release urging senators to support the Respect for Marriage Act, Joni 

Madison, the interim president of the Human Rights Campaign, stated that “when we rally our individual voices into one united roar, there is nothing we cannot accomplish” (Fields 2022). Her statement illustrates how the diversity of individuals and groups coalescing to back H.R.8404 helped it gain cross appeal between advocates for LGBTQ+ equality and religious freedom. 

Interest groups play a crucial role in American politics by connecting policymakers with the interests of their constituents. Past research has found that interest group lobbying is “associated with majority party sponsorship, extensive co-sponsorship and high-profile issues” as well as “whether bills advance through committee and each chamber” (Grossman and Pyle 2013). Furthermore, there are findings that congressional committees, a step that bills usually must pass prior to receiving a floor vote, “favor legislation supported by organizations representing diverse industries, causes, and other interests” (Lorenz 2020).

The Human Rights Campaign, a prominent LGBTQ+ advocacy group, mobilized over 40,000 Americans to contact their senators in support of the bill. It also spearheaded a letter signed by “226 major businesses representing over 8.5 million employees” urging the Senate to pass the bill (Fields 2022). These major businesses represented the full spectrum of the economy from the likes of Apple and IBM in Silicon Valley to household brands like General Mills and Clorox. The proliferation of the signatory companies in communities across the country served as encouragement for senators to support the Respect for Marriage Act.

However, a major force in the unlikely coalition pushing bipartisan support for the law 

were religious individuals and groups. Significant amendments were made to the initial House bill to ensure protections for religious liberty, which were added in the final Senate bill. These compromises for religious liberty included preventing the law from being used to argue for reduction in existing federal protections for religion, no requirement of religious assistance in marriages, and prevention of federal agencies from denying benefits to organizations holding a “traditional” view on marriage (Laycock et al. 2023). This is reflected in the second of the three stipulations that begin the bill itself: “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises.” Protections for religious liberty aided the bill in securing conservative support, with endorsements from religious groups including “the Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, the Seventh-day Adventists, the Council for Christian Colleges and Universities, the Orthodox Union” (Laycock 2022).

The intersection between religion and same-sex marriage is a reocurring theme in the larger debate of marriage equality. Same-sex marriage is viewed by many with traditional religious beliefs as immoral, and this extends into other areas of public life that legalizing same-sex marriage would open the door to parenthood through adoption and reproductive services (Chamie and Mirkin 2011). Focusing specifically on how these attitudes play out, a set of studies observed religious opposition as a result of conservative ideology and sexual prejudice, however resistance to change within conservative ideology was the strongest basis for this (van der Toorn et al. 2017). However, the United States is a nation of religious diversity that can be seen in the American religious landscape (see Table 4, Table 5). This affects how different groups of religious adherents and different types of religious practice view same-sex marriage. For example, Baunach (2012) writes that "certain Christian denominations, particularly those that advocate a more literal or fundamentalist interpretation of religious texts, are especially negatively disposed toward same-sex marriage” (p. 365).

Another study examining religion and same-sex marriage found that non-Protestants were more likely to favor same-sex unions than Protestants were (Olson et al. 2006). Those who actively engage in religion, such as by attending religious services, are less likely to support the same. Similarly, they also identified a link between conservatism and reduced support. However, while religion—namely evangelical Protestants—remained connected to same-sex marriage opposition there has been an attitude change in favor of expanding the institution of marriage that is reflected in public opinion reaching a high of 71 percent of all Americans in May 2022 (Baunach, 2012; McCarthy, 2022). The involvement of religious groups in this coalition to pass the Respect for Marriage Act may be a reflection of these institutions attempting to change with the rest of society. While 75 percent of Americans may self-identify as affiliated with a religion, over half of Americans do not attend religious services with this figure even more pronounced in the northeastern and western United States.

To illustrate the impact of these endorsements, Utah’s all-GOP congressional delegation unanimously voted in favor of H.R.8404 initially (U.S. House, 2022a). Three of the four also voted in favor of its final passage, with the exception being Congressman Burgess Owens who voted “present” (U.S. House 2022b). They were likely particularly swayed by the Church of Jesus Christ and Latter-day Saints’ (LDS) support for the Respect for Marriage Act given significant Mormon influence in the state. Adam Brown (2018), a political scientist at Brigham Young University, cited that “more than half (56 percent) of Utahns self-identify to pollsters as Mormon” which gives Utah the distinction for the most religious homogeneity of any other state though newer research has found that Mormons no longer make up the majority in the state (Cragun et al. 2023). LDS support for H.R.8404 is notable in its own right for the role that same-sex marriage has previously played in the church’s political involvement: in the 1990s and 2000s, “official Church involvement in a series of same- sex marriage contests that increasingly pitted Republicans against Democrats, especially California’s 2008 battle of Proposition 8, implied a new partisan signal” (Brown 2018). Contrasting to 2022, the church’s statement sought a more conciliatory tone focusing on the bill’s inclusion of “appropriate religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters” although still stating that its doctrine “related to marriage between a man and a woman is well known and will remain unchanged” (Church of Jesus Christ of Latter-day Saints 2022).

Like the statement issued by the LDS, other religious groups also struck conciliatory 

tones between LGBTQ+ rights and religious freedom without changing their definition of marriage itself. For example, the National Association of Evangelicals (2022) wrote in their statement that they believe “God designed marriage as an exclusive covenantal relationship between a man and a woman” but also “welcome the additional protections that Congress provided in this bill for those who do hold traditional beliefs about marriage.” However, it is a line in the last paragraph of the NAE’s statement that symbolizes the power of the Respect for Marriage Act: “the bipartisan process leading to the inclusion of religious freedom protection in this bill demonstrates that, despite deep and significant disagreements, advocates of religious and LGBTQ rights can work together to reduce hostility between our communities.”

‍Re-Election Incentives

While same-sex marriage has traditionally been supported by the center-left Democratic Party, H.R.8404 twice received significant Republican votes in the House and once in the Senate, enough to avoid a filibuster. With all Democrats in favor of the Respect for Marriage Act, this bill offered Republican legislators in competitive races an opportunity for position taking in the run up to the 2022 midterm elections. Political scientists have long considered re-election as one of the considerations, if not the main consideration, of members of Congress as they serve their terms (Arnold 1990; Fenno 1978; Mayhew 1974). Although support for same-sex marriage would not likely have a significant positive effect on their electoral margins in a primary election, Republicans in swing districts must assemble a coalition of general election voters, including Democrats and independents. Republicans in 2022 also were operating in a changed landscape, one where public opinion has shifted in favor of same-sex marriage as previously discussed earlier in this paper. Furthermore, the blowback resulting from Dobbs increased public attention towards legislators as Pew Research Center (2022) found that 6 in 10 Americans opposed the decision. Due to a combination of these factors, I hypothesize that Republican members in competitive districts were more likely to vote in favor of the legislation than Republican members in safe districts.

To test this hypothesis, data was collected for two House votes taken on H.R.8404, the initial vote in July 2022 (see Table 1) and the final vote in December 2022 (see Table 2). The control condition was set to a negative vote while the treatment conditions were set to an affirmative vote in either July or December (vote 1), an affirmative vote in July (vote 2), and an affirmative vote in December (vote 3). Each member of Congress was sorted by party and their district was assigned a score according to the Cook Political Report’s Partisan Voter Index (PVI).  I tested two measures of a competitive district based on PVI ratings, the first measure being districts ranging from D+5 to R+5 (competitive 1), and the second measure being districts ranging from D+10 to R+10 (competitive 2). The PVI scores for each district capture the partisanship of said district based on its presidential voting patterns relative to the rest of the country. It considers the two most recent presidential elections so the PVI scores used were computed based on the 2016 and 2020 presidential elections (Cook Political Report 2021). 

Examining re-election motivations through difference-in-means estimates (see Table 6), I find evidence to support my hypothesis across all three treatment conditions and two 

measures of competitiveness. In my first measure of competitiveness, Republicans were 48 percent more likely than their colleagues in non-competitive districts to vote in the affirmative on either H.R.8404 vote, 45 percent more likely on the July vote, and 42 percent more likely on the December vote. In my second measure of competitiveness, they were 37 percent, 34 percent, and 30 percent more likely, respectively. All estimates are highly statistically significant.

These results suggest that House Republicans in marginal districts considered their constituency makeup when casting their votes, which was particularly important in an election year. By presenting themselves as bipartisan legislators, these Republicans may alienate some of their party’s most conservative voters but still won’t win the most liberal Democrats. However, they are able to make inroads in the middle spectrum of voters who now view the legislator as competent legislators capable of balancing their constituents’ diverse concerns and values in Congress. Overall, H.R.8404 helped Republicans voting in the affirmative reinforce their moderate bona fides ahead of the midterms. 

Concerns about re-election were not limited to just the House of Representatives. On the Senate side, these concerns led to the postponement of a vote on H.R.8404 until after the midterms. Thanks to this postponement, incumbents running in competitive races were “spared … a fraught choice of casting a vote that would anger their party’s conservative base or one that could sour independent voters in the closing days of the campaign” (Karni 2022b). This dilemma highlights not only the importance of re-election for politicians but also the concept of traceability. Traceability occurs “if a citizen can plausibly trace an observed effect first back to a governmental action and then back to a representative's individual contribution” (Arnold 1990). Senators in competitive races didn’t want to risk alienating any of their constituencies so close to the election as their vote could easily be traced back to them given that there was significant news coverage about the Respect for Marriage Act during Senate consideration. Meanwhile, House members, who took their vote with less fanfare July, were afforded the privilege of more time elapsed between casting a potentially controversial vote and when voters would head to the polls in November, negating the impact of traceability. After the midterms, the Senate ultimately voted in favor of the Respect for Marriage Act by a vote of 61-36 (U.S. Senate 2022).

However, while House Republicans factored in their upcoming re-election campaigns in the July vote, another node of analysis can be found in the December vote which occurred after the midterms. In the House’s December vote to accept the Senate’s changes to the bill, eight fewer Republicans voted in the affirmative. While there is no single explanation for the bill’s reduced support, the removal of the re-election factor may be in play. For example, Representative Maria Salazar of Florida voted “yes” in July but flipped her vote to “no” on final passage. While she defeated incumbent Democrat Donna Shalala by 2.8 percentage points in 2020 to represent her Miami-based district, she cruised to a 14.6 point victory in 2022 (New York Times 2020; New York Times 2022). Although her statement stated that she was “disappointed to see the final House version of the Respect for Marriage Act did not include full protections for churches and Americans with sincerely held religious beliefs,” the initial bill did not contain any language at all regarding religious liberty (Salazar 2022). On the reverse, Salazar’s Republican colleague, Congresswoman Jaime Herrera Beutler of Washington, voted “yes” on the final version after having voted “no” in July. Herrera Beutler lost renomination in August after drawing the ire of former President Donald Trump and her district subsequently elected Democrat Marie Gluesenkamp Pérez to succeed her (New York Times 2022; Ulloa 2022).

It is hard to imagine any legislator explicitly stating that a vote they take is out of concern for their re-election prospects. However, given that a legislator would be unable to pursue their agenda without being in office, the Respect for Marriage Act is an implicit demonstration of political science theories on re-election considerations.

IIl. Policy Recommendations

The Respect for Marriage Act is yet another milestone for both marriage equality and the larger movement for civil rights and equality for all. It focuses on the most foundational aspect of marriage equality: the right to get married. In a contentious era for politics with sharp partisan lines across many issues, it is notable for its success. However, there are a number of ways that policymakers can continue to enhance not just marriage equality, but protections for the LGBTQ+ community at-large.

First, Congress can pass the Equality Act. This bill would “prohibit discrimination on the basis of sex, gender identity, and sexual orientation” (Takano 2023). It does so by amending the Civil Rights Act of 1964 to include those categories. While some of the Equality Act’s provisions, specifically those concerning employment, were protected by the Supreme Court in Bostock v. Clayton County, this paper has demonstrated the importance of legislative action in relation to preserving case law over the long term.

Second, states should follow the example of California, Colorado, and Hawaii which, as discussed early on in this paper, removed provisions from their state constitutions that prohibited same-sex marriage. While same-sex marriage is protected so long that Obergefell remains in place and is not overruled, the Respect for Marriage Act does not actually guarantee those rights nationwide and only recognizes, at the federal level, marriages under state law. In 2022, there were 35 states that had a ban—constitutional or statutory—on same-sex marriage (see Table 7). Whether by legislative action in state legislatures or voter mobilization through ballot measures, repealing discriminatory laws and approving positive laws—laws to affirmatively protect marriage rights—will help cement marriage equality across the nation.

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Figure 3: Ratification of the Equal Rights Amendment

Source: Author and Center for American Progress (Salas-Betsch and Kelly 2024)

Third, Congress can extend the ratification deadline for the Equal Rights Amendment. This amendment would enshrine that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” (Salas-Betsch and Kelly 2024). It originated in the aftermath of the women’s suffrage movement and was written by suffragists Alice Paul and Crystal Eastman. It first passed Congress in 1972 with bipartisan support. However, that version had a time limit for ratification—seven years—that was not met as just 35 states, of the necessary 38 states, had done so. However, support has been reinvigorated in recent years with Virginia becoming the 38th state to ratify in 2020 (see Figure 3). Should Congress extend the ratification deadline, this amendment could enter into force. A constitutional amendment is the most concrete and stable policy mechanism to guarantee a right.

IV. Conclusion

The successful iteration of the Respect for Marriage enacted during the 117th Congress when it had failed in Congresses prior is reflective of the crisis du jour created by unpredictable judicial case law, the brokering of compromises, and re-election incentives. Given that every senator and representative seeks election to Congress with intentions of making a difference in some realm of public policy, the Respect for Marriage Act is a shining example of the policymaking process with iterative design, compromise, and maneuvering. The first version of the act, introduced back in 2009, is not the same bill adopted 13 years later in 2022. It went through rounds of re-drafting and negotiations over its language as legislators pushed their vision for what they believe to be good public policy, attenuated by a shifting political environment. The finale, the law as enacted, holds further erosion of stare decisis over a constitutional right to same-sex marriage at bay. And by addressing both marriage equality and religious freedom, the bill managed to garner support across party lines, creating a new precedent for bipartisan cooperation on LGBTQ+ issues.