Yes! Yes! Yes! The U.S. Senate has passed the Respect for Marriage Act. Although the title of the legislation may sound mundane, the law itself is historic. It mandates federal recognition of same-sex marriage and repeals the 1996 federal Defense of Marriage Act, which prohibits that recognition and denies federal benefits to same-sex couples.
The Senate voted in favor, 61-36. Ten Republicans were needed to overcome the filibuster, and 11 voted for equality, which is pretty amazing for that right-wing party. To be sure, 70% of Senate Republicans voted No.
One leg of the perilous legislative journey still remains. The House must act quickly to pass the bill during the current lame-duck session before Republicans ascend to power. After that, President Biden will sign it into law, of course.
Same-sex marriage rights have been constitutionally guaranteed since 2015 and anti-miscegenation laws have been constitutionally prohibited since 1967 (more on this in a moment) so, you might well ask, what difference does this law make?
The answer is straightforward. Under this Supreme Court, few constitutional rights are sacrosanct. What the Court giveth, the Court can taketh away. But if this Court should repeal the constitutional right to marriage equality, this statute will preserve it. That matters.
One irony here is that the person we might thank for passage of this law is Supreme Court Justice Clarence Thomas, who both adamantly opposes same-sex marriage and couldn’t wait to overrule Roe. (My apologies, reader. “Thank” is the wrong word, but “acknowledge as the precipitating cause” is a mouthful.) Here’s what happened.
On June 24, 2022, the Supreme Court in Dobbs v. Jackson Women’s Health Organization threw out a half century of precedent, overruled Roe v. Wade and eviscerated the federal constitutional right to abortion. Imagine the victory celebration at the Federalist Society. Picture a gleeful Justice Thomas tooting his horn and wearing a party hat. And now listen to what he wrote in his concurring opinion in Dobbs.
First, he declared “(T)here is no constitutional right to abortion.” He explained that as far as he was concerned, a woman’s reproductive choice “is not a form of ‘liberty’ (the quotation marks are his) protected by the Due Process Clause (of the 14th Amendment).” Thomas continued, “The resolution of this case is straightforward because the Due Process Clause does not secure any (italics in Thomas’ opinion) substantive rights …” Wow.
Thomas then pressed on with the statement that really got everyone’s attention: “In future cases we should reconsider substantive due process precedents including Griswold, Lawrence and Obergefell.” Let’s translate the legalese.
By reconsider, Thomas means overrule. Reconsider is what Thomas, Alito and their Trump-appointed brethren did to Roe v. Wade.
The specific cases that Thomas is pressing the Court to “reconsider” are Griswold v. Connecticut, the 1965 case that held that married people have the right to contraceptives; Lawrence v. Texas, the 2002 case that, in striking down a state law used to criminally target gay people, held that adults have the right to engage in private intimate consensual acts; and Obergefell, the 2015 case that held that gay couples enjoy the same right to marry as straight people.
To make sure that he left no ambiguity about what he meant by “reconsider,” Thomas wrote, “Substantive due process (the constitutional basis for Roe, Griswold, Lawrence, and Obergefell and many other cases) has harmed our country in many ways. We should eliminate it from our jurisprudence at the earliest opportunity.”
Thomas’ opinion is really scary, so scary and widely noted and quoted that it helped to coalesce a bipartisan coalition in the Senate.
Republican Senator Mike Lee of Utah argued that the bill served no purpose. He assured us that the Supreme Court would never overrule Obergefell. Oh really? Obergefell was a 5-4 decision, and two of the five Justices who comprised the majority are no longer on the Court.
Another important provision of the Respect for Marriage Act is its protection of inter-racial couples. That provision, in effect, codifies the holding of Loving v. Virginia, the 1967 case where Mildred Jeter, a Black woman, and Richard Loving, a white man, went to the District of Columbia to get married and then returned to live in Virginia, in violation of that state’s anti-miscegenation statute. At that time, 16 states prohibited and punished marriages based on racial classifications.
The Supreme Court decision in Loving ruled that their marriage was constitutionally protected. Loving certainly can be read as an equal protection decision, but, like Obergefell (which Thomas specifically stated should be “reconsidered”), Loving gives legal weight to marriage as a fundamental liberty protected by the Due Process Clause.
As a country we have come a long way since 1996, when 84 senators voted in favor of the Defense of Marriage Act and President Bill Clinton signed it. But recently we also have seen in sharp relief how fragile democracy and fundamental rights can be. Passage of the Respect for Marriage Act demonstrates that when the judiciary can’t be trusted to protect liberty, elected officials still can act as a bulwark against prejudice and totalitarianism, and sometimes will.
Bill Newman, a Northampton-based attorney and WHMP talk-show host, writes a monthly column.