Bipartisan Bill Protects Same-Sex and Interracial Marriages
Congress is poised to legislate protections previously mandated by the courts.
WaPo (“Senate passes bill to protect same-sex, interracial marriages“):
The Senate on Tuesday passed the Respect for Marriage Act, which would enshrine marriage equality in federal law, granting protections to same-sex and interracial couples.
The bill passed in a 61-36 vote, with 12 Republicans joining Democrats to vote for it. Three senators did not vote. The bill includes a bipartisan amendment that clarifies protections for religious liberties, and it will now return to the House for another vote before it can go to President Biden to sign into law.
There’s essentially no chance this won’t pass in the House, so it will soon become law.
The 12 Republican senators who voted “yes” were Roy Blunt (Mo.), Richard Burr (N.C.), Shelley Moore Capito (W.Va.), Susan Collins (Maine), Joni Ernst (Iowa), Cynthia M. Lummis (Wyo.), Lisa Murkowski (Alaska), Rob Portman (Ohio), Mitt Romney (Utah), Dan Sullivan (Alaska), Thom Tillis (N.C.) and Todd C. Young (Ind.).
Before the final vote, Collins stood to “thank all of the Republicans who have supported this. I know that it’s not been easy, but they’ve done the right thing.”
It’s noteworthy, of course, that the overwhelming number of Republican Senators (38 of 50) voted against or abstained from voting for the bill. But that’s not really shocking: same-sex marriage remains controversial in many “red” states.
Biden celebrated the passage shortly after the tally was announced.
“With today’s bipartisan Senate passage of the Respect for Marriage Act, the United States is on the brink of reaffirming a fundamental truth: love is love, and Americans should have the right to marry the person they love,” the president said in a statement. “For millions of Americans, this legislation will safeguard the rights and protections to which LGBTQI+ and interracial couples and their children are entitled.”
The Respect for Marriage Act would not force states to issue marriage licenses to same-sex couples but would require that people be considered married in any state as long as the marriage was valid in the state where it was performed. The bill also would repeal the 1996 Defense of Marriage Act, which defined marriage as the union of one man and one woman and allowed states to decline to recognize same-sex marriages performed in other states. That law has remained on the books despite being declared unconstitutional by the Supreme Court’s 2013 ruling in United States vs. Windsor and its 2015 ruling in Obergefell v. Hodges, which guaranteed same-sex couples the fundamental right to marry.
This obviously doesn’t go quite as far as Obergefell. But it is in some ways more legitimate, having been passed by the people’s representatives rather than imposed by judicial fiat.
Democrats have warned since June that federal protections for same-sex and interracial marriages, as well as other rights, could be at risk after the Supreme Court overturned Roe v. Wade, which for nearly 50 years had guaranteed the right to an abortion in the United States.
In his June concurrence with the decision to overturn Roe, Supreme Court Justice Clarence Thomas wrote that the high court should also examine previous rulings that legalized the right to buy and use contraception without government restriction (Griswold v. Connecticut), same-sex relationships (Lawrence v. Texas), and marriage equality (Obergefell v. Hodges).
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”
Thomas’s opinion set off alarm bells among proponents of marriage equality, who pointed out that if the Supreme Court were to overturn Obergefell, as it did Roe, then the right to same-sex marriage would similarly fall to the states. Currently 35 states have statutes or constitutional amendments banning same-sex marriage that would go into effect if Obergefell were overturned, according to the Movement Advancement Project, a nonprofit that advocates for LGBTQ equality.
I happen to share Thomas’ view on the Constitutional basis for these rulings. Did the folks who wrote the 14th Amendment intend that it give Blacks the right to marry Whites or men to marry other men? Of course not. Indeed, most of them would have been aghast at the idea and specifically precluded those interpretations had it even occurred to them later generations would do so.
But, like the late Justice Antonin Scalia, “I’m an originalist, but I’m not a nut.” There comes a point when people have relied on an understanding of their Constitutional rights, whatever the validity of the origin story, and upending those protections is wicked and harmful.
Regardless, there’s simply no question that Congress has the authority to issue this law under the authority specifically granted it in the 14th Amendment. I can’t imagine even Thomas would disagree.
Not really, the large majority of people, even in red states, have no problem with same sex marriage. But because so many states are under minority rule, there will be many efforts to undermine the federal law through discriminatory legislation.
We really are talking about the right to privacy and basic individual freedoms here. Marriage equality is just one aspect. There is a lot of work to do to ensure privacy rights and individual freedoms.
I’m sure all the same-sex married families in the country are relieved you will finally be able to recognize their marriages as “more legitimate”.
No, it’s really not seriously controversial even in the red states. It is controversial among GOP primary voters and that’s the problem.
Perhaps the lesson of the terrible Dobbs decision is that when the Court expands individual rights through a decision, Congress ought to solidify the Court’s ruling by passing legislation codifying the expanded rights.
I’m sure Clarence will spend much of his time looking for a way to declare this law unconstitutional as regards same sex unions but not interracial ones. And if he gets a chance close to his death, perhaps he would throw his own marriage under the bus as well.
I have no problem imagining his opinion rejecting this law.
Thank you, Justice Thomas. You personally saved the Democrats from a midterm slaughter, and inspired the creation and eventual passage of this bill.
I can, and my imagination isn’t even very vivid. All one need do is look at his wife and then consider the positions he takes.
Jonathan Capehart has a good take on the bill in WAPO today. “Let’s say Thomas gets his wish and Obergefell is overturned. According to Pew, same-sex marriage bans in 35 states would go into effect — RMA or no RMA.
Now, if that were to happen, the Respect for Marriage Act means the federal government would recognize same-sex marriages performed in states where the practice is legal. So my D.C. marriage would be fine. And if we moved to my husband’s home state of North Dakota, which bans our union in its constitution and by law, the federal government would still recognize our marriage because it was legally performed in D.C.
What the act does not do is require states to issue marriage licenses in contravention of state law; this is (for now) the province of Obergefell.” If Obergfell is overturned then couples must marry in states where the marriage is recognized.
Give it a few weeks. He’ll come up with something. I await your “Justice Thomas has a point” post the next day.
Meh…probably not so much.
36 Senators are real cowards, though.
to OP
I’m pretty sure that they would have felt the same way about using the 14th amendment to give corporation rights, but we seem to be a point were no one seriously brings that up at all. And when people like me do, they think it completely unserious.
Sort of like how we ignore Army Clause in the body of the constitution whole cloth.
This is excellent news.
Intentions not clearly stated in the text of a law, are of no legal significance.
I’m not saying this is always a good thing. The Second amendment was intended for a time when large standing armies were not an obligatory feature of a state, and many who volunteered or were drafted in time of war perforce provided their own arms.
They should have been more explicit.
That said, when it comes to individual rights, I prefer the philosophic principle that states, “That which is not expressly forbidden is allowed.” There is no express prohibition to same sex marriage, nor to interracial marriage, in the Constitution as exists today.
Finally, no one and no law is immune to unintended consequences.
I read this this morning. It has bounced around my head all day. Every single time it surfaced. It pisses me off. It’s infuriating to have someone whose rights are never questioned pass on the legitimacy of the rights of others.
Personally, I agree with this:
https://apple.news/AL7CEKAT4RH-MuEucdwAZXg
And I think this legislation isn’t worth wiping my ass on. It won’t protect me or my family from the people that think my existence, my love, and my family are illegitimate.
I honestly believe that Clarence Thomas would question the prohibition against slavery if he thought he had any chance at all of winning. At a certain point, “conservative principles” are indistinguishable from mental illness.
James: “But it is in some ways more legitimate, having been passed by the people’s representatives rather than imposed by judicial fiat.”
James, I believe that you are missing the idea of’rights’.
Really? I can very easily imagine Thomas invalidating Obergfell, opining that this (gay marriage) is a State’s Right issue, etc, etc, etc.
Alito and Thomas both have no problem enlisting the Court in the right wing culture war.