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.
