With the upheaval caused by the Supreme Court’s overturning of Roe v. Wade came aftershocks of worry about what could come next. Could, as Justice Clarence Thomas suggested in his concurring opinion, same-sex marriage get lined up in the court’s crosshairs as a future target? Contraception? Interracial marriage?
The court’s conservative 6-3 majority has much of America hand-wringing about long accepted rights now vulnerable to being diminished or even entirely struck down. This legitimate concern could be alleviated if those rights were shielded from judicial constitutional interpretation. Congress should step in.
The U.S. House on July 19 passed legislation that would shield same-sex marriage at the federal level. Essentially, the bill codifies protections created by the 2015 Supreme Court ruling in Obergefell v. Hodges that established same-sex marriage as a right under the due process and equal protection clauses of the 14th Amendment.
The measure got more than just a modicum of GOP support, with 47 Republicans signing onto the bill. Still, more than three-fourths of GOP lawmakers opposed the bill, suggesting that the party has yet to get in step with the rest of America. A 2021 Gallup poll put support across the country for same-sex marriage at 70%. A majority of Republicans in the poll — 55% — gave their approval.
The bill now goes to the evenly divided Senate, where 10 Republicans are needed for its passage. If those senators take the time to understand what’s at stake, they’ll sign on to the bill.
Same-sex marriage is indeed at risk with this immoderate and reckless court, and not only because of what Thomas had to say in Dobbs v. Jackson Women’s Health Organization.
Justice Samuel Alito has been just as outspoken in his opposition to same-sex marriage. In the 2015 Obergefell ruling, Alito wrote in his dissent that the decision changed the “traditional understanding of marriage.” In a November 2020 speech, he lamented that, after Obergefell, “You can’t say that marriage is a union between one man and one woman.”
And in October 2020, when the Supreme Court opted to not hear a case from a Kentucky county clerk who refused to issue a marriage license to a same-sex couple, Alito joined Thomas in issuing a harsh denouncement of Obergefell, saying it “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”
We disagreed with Alito, Thomas and the other conservative justices in 2015 when they voted against establishing same-sex marriage as a constitutionally protected right. Our position hasn’t changed, and we believe Congress is right to regard gay marriage as vulnerable to the court’s current conservative majority.
There’s no reason why privileges protected under the law for heterosexual married couples — from property rights, child custody considerations, tax breaks and even the ability to visit a partner in the hospital or participate in medical decisions — should not apply to gay couples. Denying those privileges, and denying gay couples the right to marry solely on the basis of sexual orientation, amounts to nothing less than blatant discrimination.
Following its move to protect same-sex marriage, Congress acted similarly to shield the right to contraception. On Thursday, the U.S. House passed the Right to Contraception Act, establishing a federal right to birth control. That right has been preserved by the 1965 Supreme Court decision, Griswold v. Connecticut, but Thomas squarely took aim at that ruling in his concurring opinion in Dobbs, urging the court to take a second look at Griswold.
Unlike with the House same-sex marriage bill, congressional Republicans were not nearly as willing to back the Right to Contraception Act — only eight Republicans supported it. It’s not expected to pass in the Senate, a fate that surely the GOP will have trouble explaining to voters. Republicans can’t get behind birth control? That’s indefensible.
The broadside delivered by the overturning of Roe affected America in myriad ways. One was to signal the imperilment of other rights and freedoms long taken for granted.
Congress is absolutely right to shield them through legislative action, and lawmakers who don’t join those efforts are showing just how out of touch they are with the rest of the country.
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