Biden’s marriage messaging party
Byron York
BIDEN’S MARRIAGE MESSAGING PARTY. On Tuesday, President Joe Biden held a big White House ceremony to sign the Respect for Marriage Act, passed by bipartisan majorities in the House and Senate. It was a strange event, celebrating the passage of a bill that will make absolutely no change in the practice of marriage in the United States today.
The new law is designed to “protect” same-sex marriage in the U.S. from those forces that seek to undermine it or, to be more accurate, from those forces Democrats believe are seeking to undermine it or, to be even more accurate, from those forces Democrats want you to believe are seeking to undermine it. The law is unnecessary because, as explained in this newsletter last month, “the Supreme Court has already declared, in the 2015 Obergefell decision, that gay marriage is a constitutional right in the United States. In the seven years it has been in effect, there has never been the slightest danger that Obergefell might be overturned. There has not been a long trail of litigation seeking to reverse it in any way like the 50 years of court battles that led the court to overturn Roe v. Wade in the Dobbs decision this year.” Homosexual couples who were married as of Monday, before the bill was signed into law, are still just as married today, no more, no less, after the signing ceremony.
The law also “protects” interracial married couples in the same way that it “protects” same-sex couples. Interracial marriage has been a constitutional right in the U.S. since the Supreme Court’s 1967 Loving decision. There is no danger that Loving will be overturned. As in the case of same-sex marriage, there is no long trail of litigation seeking to overturn Loving, no half-century of court battles, no anti-interracial marriage movement with millions of adherents. Interracial couples who were married as of Monday, before the new bill was signed, are still just as married today, after the signing.
Subscribe today to the Washington Examiner magazine that will keep you up to date with what’s going on in Washington. SUBSCRIBE NOW: Just $1.00 an issue!
Nevertheless, the act prohibits what is already prohibited, which is the refusal to recognize a marriage on grounds of sex or race. And that is what made the ceremony strange. For example, House Speaker Nancy Pelosi (D-CA) told the cheering crowd, “With the stroke of the president’s pen, the fundamental right to marry the person you love is enshrined in the law of the land.” But less than four years earlier, in 2019, on the fourth anniversary of Obergefell, the same Nancy Pelosi declared, “Marriage equality is now the law of the land.” Yes, it was the law of the land then, and it is the law of the land now.
Likewise, on race, Biden made the White House ceremony, in part, about the Loving case. “On this day, I think of Mildred and Richard Loving, a young woman of color and young white man,” Biden said. “They met as family friends and eventually fell in love. In 1958, they drove to Washington, D.C., to get married because the relationship was illegal in Virginia.” The Lovings were later charged with violating the law against interracial marriage in Virginia. They challenged the law in court, and in 1967, the Supreme Court unanimously overturned all state laws prohibiting interracial marriage. That has been the “law of the land” for the last 55 years, and there is no indication that that will change.
To stress the event’s link to interracial marriage, Biden invited one of the lawyers who represented the Lovings to attend the Respect for Marriage Act ceremony. He also invited the widow of another lawyer in the 1967 case, saying the Lovings “took the fight to the highest court because they believed their love should not be criminalized but should be honored and respected.”
What is going on? Democrats would say they took action because one justice on the Supreme Court, Clarence Thomas, wrote a concurring opinion in the Dobbs case, the one that overturned Roe, saying that the court should in the future reexamine Obergefell, as well as the Griswold case, the 1965 decision that overturned bans on contraception. “We have a duty to ‘correct the error’ established in those precedents,” Thomas wrote. That, Democrats say, created a real and present threat of the reversal of the court’s gay marriage and interracial marriage precedents.
It should be noted that Thomas was all by himself in that position. The author of Dobbs, Justice Samuel Alito, took pains to stress the uniqueness of the abortion issue and wrote that overturning Roe would specifically not lead to a reconsideration of gay marriage or any other issue. No other justice appears at all interested in revisiting the earlier decisions.
But remember: Abortion was a big issue for Democrats in the midterm elections. Some Republican strategists dismissed predictions that the Dobbs case would energize Democratic and independent voters. But that is what happened, and it helped Democrats minimize their losses in the House and retain control of the Senate. So now, post-Dobbs, Democrats see political gain in pointing to perceived “threats” to gay and interracial marriage.
The Respect for Marriage Act does do one thing that concerns many Republicans. It creates what is called a “private right of action” for anyone to sue any government agency, official, contractor, or partner that does not recognize gay marriage. Many Republicans fear that could lead to lawsuits against religious-affiliated adoption agencies that work with state and local governments and do not want to place children in same-sex marriage homes. Some Republicans also believe, with reason, that in such situations, the law gives more power to the plaintiffs than to the religious-affiliated defendants. In short, they worry that the Respect for Marriage Act could become a liberal lawsuit generator.
And now it is law. In the big picture, the Respect for Marriage Act is, in some large part, a variation on what is known on Capitol Hill as a “messaging” bill. Usually, that refers to a bill that has no chance of passage but that proponents want to be able to say they favored and that the bad guys on the other side opposed. In this case, the bill actually did pass and become law, but the hope is that it will still send a message to its Democratic supporters. Indeed, in his remarks at the White House, Senate Majority Leader Chuck Schumer (D-NY) said, “By enacting this law, we are sending a message to LGBTQ Americans everywhere.” He might also have said to Democratic voters everywhere.
After the president signed the bill, the White House sound system blasted out Lady Gaga’s gay disco anthem, “Born This Way.” (Sample lyrics — “Don’t be a drag, just be a queen.”) When night fell, Biden illuminated the White House in the rainbow colors of the gay flag. It was a day of messages at the White House.
For a deeper dive into many of the topics covered in the Daily Memo, please listen to my podcast, The Byron York Show — available on the Ricochet Audio Network and everywhere else podcasts can be found. You can use this link to subscribe.