House Democrats set the stage for votes codifying same-sex marriage and protecting access to contraception during a Judiciary Committee hearing Thursday highlighting the sweep of the Supreme Court opinion that overturned the constitutional right to an abortion.
The hearing comes as part of a scramble among congressional Democrats to respond, while they hold control of Congress and the White House, to last month’s decision overturning the 49-year-old Roe v. Wade decision guaranteeing a right to an abortion.
Legal experts at the hearing and outside of it have argued that the Supreme Court’s decision in Dobbs v. Jackson Women’s Health makes other rights, like same-sex marriage, same-sex relationships and contraception, vulnerable.
Rep. David Cicilline, D-R.I., argued in favor of passing legislation that would change the portions of the 1964 Civil Rights Act that cover public accommodations, public facilities, education and federal funding to also cover sexual orientation and gender identity.
“The Supreme Court is attacking our freedoms. We need to stand up and codify everything we can to protect all Americans so they can be free from discrimination of any kind, and recognize the autonomy of every single American,” Cicilline said.
Democrats on the Judiciary Committee hinted that they want the chamber to vote on legislation that would codify rights threatened by the decision and force Republicans to take votes on whether same-sex relationships and access to contraception should be legal in every state.
Throughout the hearing, Republicans and witnesses they invited argued that the Supreme Court’s opinion was limited to abortion. Catherine Glenn Foster, president of Americans United For Life, pointed to a portion of the opinion that said the ruling “should not be understood to cast doubt on precedents that do not concern abortion.”
About the idea that other rights could be affected, Foster said, “It’s hysteria, it’s nonsense, it’s just not true. Anyone who has read the Dobbs decision could tell you that.”
Rep. Steve Chabot, R-Ohio, argued that the legal theory behind those non-abortion rights “isn’t likely to change, and any argument to the contrary is speculative fearmongering.” Chabot said it’s a sign of the “dangerously inflammatory rhetoric that is being employed by pro-abortion radicals” in response to the decision.
“The Democrats have been single-mindedly focused on the rhetoric that led up to tragic events of Jan. 6, and yet for the most part, they’ve been silent when similar language and tactics are used by their supporters,” Chabot said, referring to a man charged with attempted murder of Justice Brett M. Kavanaugh and protests outside justices’ homes in response to the Dobbs decision.
Democrats on the panel and witnesses they invited pointed to the dissenting opinion in the case, which argued the majority’s approach to the particular branch of constitutional law, substantive due process, undermined the decisions that guaranteed same-sex marriage, same-sex relationships and access to contraception.
They also pointed out a separate concurring opinion from Justice Clarence Thomas, who wrote that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to the cases that established those rights.
Previous legislation
Democrats on the panel argued they may want to reintroduce legislation to repeal the Defense of Marriage Act and codify same-sex marriage. After the House in March 2021 approved a bill to do that by a 224-206 vote, with three Republican supporters, the Senate Judiciary Committee held a hearing but took no further action.
One of the majority witnesses, Sarah Warbelow, legal director for the Human Rights Campaign, spotlighted the bill titled the Respect for Marriage Act, which was introduced in 2015, that would codify federal recognition of same-sex marriage.
Warbelow separately called the Defense of Marriage Act “a stain on this nation” and said the law “represents a time in which there was incredible hostility to LGBTQ people.”
“I have a deep fear that that hostility remains and is bubbling up once again. It’s important for Congress to take critical steps to ensure that marriage equality remains the law of the land,” Warbelow said.
Initially passed in 1996, the law prevented federal recognition of same-sex marriages and allowed states to ignore lawful same-sex marriages conducted in other states.
A key portion of the law was invalidated by a 2013 Supreme Court case, United States v. Windsor, that was a precursor to the 2015 Obergefell v. Hodges case that legalized same-sex marriage in every state.
House Judiciary Chairman Jerrold Nadler, D-N.Y., noted he introduced a bill in prior congresses to repeal the law. House Democrats’ efforts on that front could add to legislation they have set up for floor debate that would codify access to abortion, titled the Women’s Health Protection Act, and interstate travel, titled the Ensuring Access to Abortion Act.
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