WASHINGTON – Though the U.S. Supreme Court struck a mortal blow to the Defense of Marriage Act last week, gay marriage is far from settled at the federal level, with lawmakers in Congress responding in very different ways.
The court’s twin 5-4 decisions overturned a key provision of the federal law and let stand a lower court’s decision against Proposition 8, California’s voter-approved state ban on gay marriage. Including California, gay marriage is now legal in 13 states and the District of Columbia.
But the justices left in place bans in at least three dozen states and did not require those states to recognize gay couples married legally elsewhere. Legal experts have said that couples who live in such states may find themselves still denied some federal benefits unless Congress changes the law. And should lawmakers fail to agree on a solution, the issue will soon be back in court.
Democrats in the Senate and the House of Representatives, led by Sen. Dianne Feinstein of California and Rep. Jerrold Nadler of New York, reintroduced a bill to repeal the Defense of Marriage Act and erase any lingering uncertainty about which same-sex couples are married in the eyes of the federal government.
“It is time Congress strike this discriminatory law once and for all,” Feinstein said last week, noting that more than 1,100 federal benefits are at stake for married same-sex couples.
Meanwhile, a group of House Republicans, led by Rep. Tim Huelskamp of Kansas, reintroduced a measure to amend the U.S. Constitution to ban gay marriage. Huelskamp said the court had “substituted its personal preferences on marriage for the constitutional decisions of the American people and their elected representatives.”
“Congress clearly must respond to these bad decisions,” he said.
The momentum, at least for now, would seem to favor gay marriage. A majority of Americans now support it, according to recent polls. And while most Republicans still oppose gay marriage, the party’s leaders would prefer to move on. House Speaker John Boehner, R-Ohio, spent $2.3 million of taxpayer money defending the Defense of Marriage Act in court and lost. He and other Republican leaders now say it’s up to the states.
“The court’s made its decision,” Boehner told reporters last week.
Huelskamp’s effort has 28 co-sponsors. But Boehner and other GOP leaders have not signed on, and it faces long odds anyway, because constitutional amendments require a two-thirds majority in the House and Senate. The last time the House voted on the Federal Marriage Amendment, in July 2006, it fell short, even with the support of Republican leaders and some Democrats.
Feinstein’s bill, meanwhile, has support from 41 other senators and could gain more. Among the chamber’s 100 members, 54 have publicly declared their support for gay marriage, including three Republicans. The House version of the Respect for Marriage Act has 160 co-sponsors, including at least three Republicans.
Kim Alfano, a Republican consultant in Washington, said the party’s leaders see the writing on the wall.
“Frankly, though it is a high-profile, sensational issue at the moment, they probably like passing the buck, because they have much bigger issues they want to dramatically fall on their sword for,” she said.
Brian Moulton, legal director at the Human Rights Campaign, the nation’s largest gay-rights group, said it would be difficult to get any legislation passed in Congress to fix what the Supreme Court didn’t. But he added that as more Americans change their minds about gay marriage, so would more lawmakers. “At some point in the next few years, we’ll reach a tipping point in both chambers,” he said.