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But what the bill actually does — and that advocates and lawmakers felt it necessary in the first place — is a different story. After the Supreme Court’s historic 2015 Obergefell v. Hodges decision, same-sex marriage as a constitutional right seemed like a certainty. RFMA’s existence shows that it’s not.
The imminent passage of the bill, which the House is expected to take up this week and President Biden has vowed to sign, feels more like a sigh of relief than a celebration for some in the LGBTQ community. And to some, relief is even too sunny a descriptor.
“This bill is the equivalent of getting the lifeboats prepared for the ship to go down,” activist and writer Charlotte Clymer told my colleague Olivia McCormack.
What RFMA does (and why)
The act requires states to recognize marriages as long as they are valid in the state where they were performed. This ensures that if Obergefell were overturned, same-sex couples would maintain their spousal rights, which is critical — especially in the face of a tragedy such as the hospitalization or death of a partner.
But the bill stops short of requiring states to allow same-sex couples to get married in all states.
One of the ways the bill protects same-sex marriage is by repealing the 1996 Defense of Marriage Act, which set the federal definition of marriage as the union between one man and one woman and allowed states the power to refuse to recognize same-sex marriages granted in other states.
Prior to this summer, the right to same-sex marriage was thought to be settled law. But after the Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, advocates worried that same-sex marriage could face a similar fate. (These concerns were heightened by Justice Clarence Thomas writing that the court “should reconsider" cases like Obergefell to be consistent with its ruling on Dobbs.)
“It is not unreasonable to think that Obergefell is on [the court’s] list of decisions that, now that conservatives have the majority, they want to go back and undo,” LGBTQ politics expert Melissa Michelson, who is also dean of arts and science at Menlo College, told The Daily 202.
Social change at breakneck speed
Public opinion tends to be relatively stable. Attitudes about abortion and gun control haven’t shifted dramatically in the past 50 years. But, Michelson said, support for same-sex marriage and the LGBTQ community more broadly has increased radically in that time.
As recently as 2004, 60 percent of Americans opposed same-sex marriage and 31 percent were in favor of it, according to the Pew Research Center. Those numbers have almost flip-flopped: Pew found that in 2022, about 61 percent of Americans view same-sex marriage positively and 37 percent have a negative view.
That seismic public shift in approval for same-sex marriage has compelled politicians to follow suit. Bill Clinton, a Democrat, signed DOMA into law less than 30 years ago. Last week, 12 Republicans joined Democrats to pass RFMA 61-36.
“It’s pretty head-spinning even for those of us who work on these issues professionally," said Rutgers law school professor Leonore F. Carpenter, who has served as an LGBTQ rights attorney. “This happened as the result of decades of careful, incremental work by LGBTQ rights advocates.”
Democrats transformed quickly on same-sex marriage. After then-vice-president Biden went off-script to announce his support for it a decade ago (which pushed President Barack Obama to follow), the party fell in line.
It’s been a slower shift for Republicans, but 47 House Republicans’ support for RFMA this summer demonstrates how much the party has reshaped itself on the issue. As former Senate Majority Leader Trent Lott (R-Miss.) said: “Times change. And senators change.”
Some religious groups, including the Church of Jesus Christ of Latter-day Saints, even supported RFMA after religious exemptions were tacked onto the bill.
What the bill doesn’t do
To garner enough Republican support to get the bill through Congress, Democrats had to make some concessions. One amendment confirms that nonprofit religious organizations would not be required to provide “any services, facilities, or goods for the solemnization or celebration of a marriage.”
In short: RFMA is not a one-to-one replacement for the Obergefell ruling.
“This is not a bill that is going to formally codify same-sex marriage rights because of those concessions,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) said. “So I think we take what protections we get, but I do not think that we tout this as more than what it is.”
Groups like the American Civil Liberties Union were quick to point out that while the act is progress, LGBTQ rights are still under attack nationwide.
"Transgender people especially have had our safety, dignity, and health care threatened by lawmakers across the country, including by members of this Congress,” the ACLU tweeted.
“We welcome this historic vote to protect the rights of LGBTQ people and our families, but the fight isn't over.”
Some advocates, like Clymer, believe the Equality Act would provide more useful protections for LGBTQ individuals. The act would prohibit discrimination based on sex, sexual orientation and gender identity, but it almost certainly won’t make it through the incoming Congress.
While RFMA will be hailed as historic when Biden signs it into law, it will also serve as a reminder for many LGBTQ Americans of how much more progress remains to be made.
What’s happening now
Supreme Court to consider fundamental change in elections authority
The stakes: It could give state legislatures sole authority to set the rules for the contests, subject only to intervention by Congress, even if the actions of legislators violate voter protections laid out in state constitutions and result in extreme partisan gerrymandering for congressional seats.”
German police arrest 25 over far-right plot to overthrow government
“The group was prepared to use violence — including the murder of state representatives — to carry out its aim of replacing the existing order in Germany with its own form of government, the prosecutor said,” Loveday Morris and Victoria Bisset report.
China eases covid testing and health-pass rules in wake of protests
“China announced on Wednesday that frequent coronavirus tests and digital health codes, two pillars of its ‘zero covid’ policy, would no longer be required for daily life or to travel within the country — a significant relaxation of previously unyielding restrictions that were protested in more than a dozen cities across the country in recent weeks,” Christian Shepherd and Lyric Li report.
Lunchtime reads from The Post
Democrats ramp up investigation of Kushner family business dealings
“Democrats on a pair of congressional committees have launched an aggressive new effort to obtain information about whether Jared Kushner’s actions on U.S. policy in the Persian Gulf region as a senior White House adviser were influenced by the bailout of a property owned by his family business,” Michael Kranish reports.
Trump team searches two of his properties amid court battle with DOJ
“Lawyers for former president Donald Trump conducted a search of at least two of his properties for classified materials in recent weeks, after they were instructed by a federal judge to attest they had fully complied with a May grand jury subpoena to turn over all materials bearing classified markings, according to people familiar with the matter,” Jacqueline Alemany, Josh Dawsey, Spencer S. Hsu and Devlin Barrett report.
… and beyond
Nigerian military ran secret mass abortion program in war against Boko Haram
“Since at least 2013, the Nigerian military has conducted a secret, systematic and illegal abortion programme in the country’s northeast, ending at least 10,000 pregnancies among women and girls, a Reuters investigation has found. Many had been kidnapped and raped by Islamist militants. Resisters were beaten, held at gunpoint or drugged into compliance, witnesses say,” Paul Carsten, Reade Levinson, David Lewis and Libby George report for Reuters.
TikTok national-security deal faces more delays as worry grows over risks
The goal: “The talks have been aimed at reducing Chinese government influence on the U.S. operation, without completely severing TikTok’s Chinese ties, according to people familiar with the discussions,” the Wall Street Journal’s John D. McKinnon, Aruna Viswanatha and Stu Woo report.
The latest on covid
Global partners may end broad covid vaccination effort in developing countries
“The organization that has led the global effort to bring Covid vaccines to poor and middle-income countries will decide this week whether to shut down that project, ending a historic attempt to achieve global health equity with a tacit acknowledgment that the effort fell far short of its goal,” the New York Times’s Stephanie Nolen reports.
The Biden agenda
Biden factory visit launches effort to show his bills actually work
“President Biden on Tuesday lauded a pair of semiconductor factories taking shape in Phoenix, saying they’re a direct result of his economic policies — a prelude to what is likely to be two years of crisscrossing the country in an effort to persuade voters the bills he’s passed are making a difference in their lives,” Cleve R. Wootson Jr. and Toluse Olorunnipa report.
Inside the White House gun violence initiative they say is actually working
“On Thursday, the White House will mark the end of its 18-month initiative known as the Community Violence Intervention Collaborative with a celebration at the Eisenhower Executive Office Building. For a year and a half, city and county leaders around the country have received funding, training and technical assistance, and met regularly with White House officials to bolster community violence intervention programs that have been shown to break cycles of violence,” Politico’s Myah Ward reports.
Gaps in the FBI’s fatal police shootings database, visualized
“Even though federal records indicate that fatal shootings by police have been declining nationwide since 2015, The Washington Post’s Fatal Force database shows the opposite is true: Officers have shot and killed more people every year, reaching a record high in 2021 with 1,047 deaths," Andrew Ba Tran, Marisa Iati and Claire Healy report.
Hot on the left
Democrats elected a big class of young governors. They might be the future of the party.
“Of the 18 Democrats elected or reelected to governorships this year, eleven are under the age of 60. Many are closer to 50. Michigan’s Gretchen Whitmer, 51, won reelection, and Pennsylvania’s Josh Shapiro, 49, and Arizona’s Katie Hobbs, 52, both won open seats. And all three of the party’s flips — Hobbs, alongside Maryland’s Wes Moore, 44, and Massachusetts’ Maura Healey, 51 — fall into this category as well,” Politico’s Zach Montellaro reports.
“The wave of new faces is also diverse and includes the country’s first lesbian governors — Kotek and Healey — and the third elected Black governor in American history in Moore.”
Hot on the right
Biggs says he’ll challenge McCarthy for House speaker on Jan. 3
“Rep. Andy Biggs (R-Ariz.), who failed three weeks ago in a vote among House Republicans to lead the conference, is mounting another challenge to Rep. Kevin McCarthy (R-Calif.): for speaker, when the full House votes early next year,” John Wagner and Marianna Sotomayor report.
The situation: “To prevail, McCarthy will need 218 votes — a majority of the full chamber. Assuming that no Democrats vote for McCarthy, he can afford to lose just a handful of fellow Republicans. Accordingly, Biggs could block McCarthy’s path if just a few of his colleagues rally around him.”
Today in Washington
At 7:15 p.m., Biden will speak at the at the 10th annual National Vigil for All Victims of Gun Violence at St. Mark’s Episcopal Church. He will return to the White House at 8 p.m.
In case you were wondering, too
Here’s the story behind the Columbia Heights holiday tree, ‘Tiny Timber’
“The holiday tree at D.C.’s Columbia Heights Civic Plaza is … modest. The tree’s humility sparked a lot of spirited conversation online, and now the tree dubbed ‘Tiny Timber’ is even a long sleeve t-shirt,” Amanda Michelle Gomez writes for DCist.
Amanda has the scoop on how the plaza ended up with the fun-size fir.
Thanks for reading. See you tomorrow.