Update: The House of Representatives passed the Senate's revised version of the bill in a 258-169 vote December 8. President Biden is expected to sign the bill into law in the coming days.
The LGBTQ+ community saw a rare legislative win November 29, with a 61-36 bipartisan vote in the Senate on bill H.R. 8404. The legislation would ensconce federal recognition of gay marriages as the law of the land, following the Supreme Court's 2015 Obergefell v. Hodges ruling that established gay marriage as a Constitutional right.
Movement behind the bill amped up following the 2022 Supreme Court ruling in Dobbs v. Jackson Women's Health Organization that largely overturned Roe v. Wade and abortion rights. In Justice Clarence Thomas's written opinion on the Dobbs ruling, he wrote that the court should in the future "reconsider" Obergefell.
H.R. 8404, which is expected to succeed in an upcoming second vote in the House of Representatives, requires that all states recognize the validity of out-of-state marriages regardless of the gender, race, or ethnicity of the spouses—making the bill also important to interracial marriages. It would also formally repeal the 1996 Defense of Marriage Act, which prohibits same-sex couples from receiving federal benefits; the legislation was rendered unenforceable following the Obergefell decision.
The bill does not, however, extend or protect the rights of marriage to same-sex couples across all 50 states. If H.R. 8404 is indeed signed into law and the Supreme Court revisits the Obergefell precedent, individual states would be free to ban same-sex marriage again; the legislation would only require that states recognize out-of-state same-sex marriages. A Republican-backed amendment also leaves room for religious organizations to deny goods and services for any marriage ceremony, and prevents them from losing tax-exempt status and other benefits for refusing to recognize same-sex marriages.
The moment is especially important to the theatre industry, which has overwhelmingly been an active participant in the efforts to give the LGBTQ+ community the right to marry. With the Constitutional right potentially coming up for a second opinion in the coming months, H.R. 8404 could prove especially important to theatre artists who book gigs outside of New York, either at regional theatres or on national tours. While the right to marry does not appear to be jeopardized in New York or California (home base for the largest percentage of industry professionals), the bill would ensure that states less hospitable to queer theatre artists would have to recognize their marriage. Such protections have historically been especially important in the case of medical emergencies.
A final House vote on H.R. 8404 is expected to take place next week, after which President Biden's signature would be the only remaining barrier to the bill becoming federal law. Biden has said that he looks forward to signing the bill.