Port: Like it or not, the Respect for Marriage Act is how the law is supposed to be made in America

Serious questions of policy in our society should be settled through the flawed, frustrating, and often extremely protracted process of democracy and not judicial fiat.

Gay marriage supporters in 2011
Gay marriage supporters rally in April of 2011 as Minnesota lawmakers considered whether to put an anti-gay marriage provision in the state Constitution.
Don Davis / Forum News Service file photo
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MINOT, N.D. — Today the U.S. House of Representatives voted, again, in favor of the Respect for Marriage Act (the chamber had to confirm a somewhat amended version of the bill which emerged from the Senate). The legislation now heads to the desk of President Joe Biden, who has indicated he will sign it.

North Dakota's all-Republican congressional delegation was split on the bill. Sens. John Hoeven and Kevin Cramer voted against the bill, claiming that it doesn't contain sufficient protections for religious liberty. Congressman Kelly Armstrong specifically disagreed with that argument, and voted for it.

"Same-Sex Marriage Will Finally Be Written Into Law," is the headline one national media outlet used to describe this turn of events, and that says a lot, doesn't it?

Same-sex marriage is already legal in every American state. But for many of those states, it's legal because the U.S. Supreme Court issued an opinion finding bans on same-sex marriage to be unconstitutional. When that opinion was handed down in 2015, I wrote that I was glad that same-sex marriage was going to be legal, but that I wish legalization had come from the political process and not the courts.

Now here we are, finally getting a political solution to this pressing social policy question, though I should note that the court precedent outlawing same-sex marriage bans still stands. It was only the threat of that precedent being overturned, as expressed by Justice Clarence Thomas in concurrence with the court's opinion overturning Roe v. Wade, that prompted this Congress to act.


By the way, if the court overturns their precedent on same-sex marriages, too, the Respect for Marriage Act wouldn't overturn any state-level marriage bans from taking effect. It would only apply the "full faith and credit" clause of the constitution to the situation, requiring that every state recognize legally-issued marriage licenses from other states.

Though, I have to think, that if the Supreme Court were to overturn the precedent, many state-level bans on same-sex marriage wouldn't survive. Because attitudes about same-sex marriage have changed, dramatically.

Which is why this issue should have been left to the political process. Making law at the ballot box, and in legislatures, is often a slower process than getting some judges to write the law for you, but ultimately it's a healthier process for our country.

It's the way our political process was designed to work.

Judges imposing their preferred policy outcomes is not what our founders intended when they designed our system of government.

Today, Congress passed a law protecting marriage rights for same-sex couples, and it passed with significant bipartisan support. Armstrong was joined by 58 other Republicans in Congress — 47 total in the House, 12 in the Senate — in voting for this legislation.

Not everyone liked this bill — in the Senate 36 Republicans voted against the bill, as did another 169 in the House — but the goal of democracy isn't unanimity. It's consensus. And there was enough of a political consensus around this legislation for Congress to make it law.

That's a much happier outcome — certainly a more rigorous and inclusive one — than a few judges deciding what the law ought to be. And because of that, this political victory for marriage rights will be more enduring, I think.


The Supreme Court should strike down its precedent on same-sex marriage. Not because I want same-sex marriage to be outlawed, but because that's not how our system should work.

The Respect for Marriage Act is how law should be made in America.

Serious questions of policy in our society should be settled through the flawed, frustrating, and often extremely protracted process of democracy and not judicial fiat.

"You could hear an audible groan in the chamber," one lawmaker told me shortly afterward. "Absolutely embarrassing."
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Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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