The needless act to ‘protect’ marriage

Gay Marriage Supreme Court

The needless act to ‘protect’ marriage

THE NEEDLESS ACT TO ‘PROTECT’ MARRIAGE. There are two things to remember about the Respect for Marriage Act. One, it is unnecessary. And two, it’s going to become law.

The bill is in the Senate, where it is guaranteed to pass. There was a vote this week to overcome a filibuster, and the bill made it over that hurdle with 62 votes — all 50 Senate Democrats plus 12 Republicans. Democratic leaders had waited until after the midterm elections to hold the vote in case any of the Republicans were feeling political pressure. Now, the Senate will hold a vote on the final passage after Thanksgiving.

The bill originally passed the Democratic-controlled House in July. It was amended in the Senate (more on that later), so the House will have to pass the Senate version before it can go to President Joe Biden for his signature. But all indications are the House will pass it and Biden will sign it and it will become law.

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The act would codify gay marriage in the United States. The reason it is unnecessary is that the Supreme Court has already declared, in the 2015 Obergefell decision, that gay marriage is a constitutional right. 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 overturn 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.

Indeed, in Dobbs, Supreme Court Justice Samuel Alito, author of the decision, took care to specify that the question of marriage is far different legally from the question of abortion because nobody gets killed. “The abortion right is … critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty,'” Alito wrote. “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”

That was pretty clear. Nevertheless, one justice, Clarence Thomas, wrote in a concurring opinion that after overturning Roe, the court should turn to, among other cases, Obergefell. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “We have a duty to ‘correct the error’ established in those precedents.” There is no evidence that any other justice agrees with Thomas and much evidence that they don’t. It appears that Thomas is a lone voice call for a review of Obergefell.

But remember that the Dobbs decision hit the midterm election campaign like a bombshell. Democrats, despairing about the prospect of big losses due to inflation and Biden’s unpopularity, sought to make abortion the big issue of the campaign. And indeed, abortion was a big issue with Democratic voters. There is a lot of data to show that it intensified their determination to vote. One of the reasons the midterm results were so close, and so disappointing for Republicans, is that Democratic voters, and some independents, too, were fired up about the Dobbs decision.

Amid the newly energized campaign, House Democrats created the Respect for Marriage Act, which was introduced and quickly passed in July. The idea was that, even though there was no known threat to Obergefell, no litigation, and no discussion of challenging Obergefell beyond Thomas’s note, Congress should nevertheless step in to codify gay marriage across the country.

But the bill did more than say, “Gay marriage is legal.” It created what is called a “private right of action” for anyone to sue any government agency, official, contractor, or partner who did not recognize gay marriage. It could, in other words, become a gay marriage lawsuit machine.

First the bill said: “No person acting under color of state law may deny full faith and credit to any public act, record, or judicial proceeding of any other state pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals.” Then it said: “Any person who is harmed by a violation of [the above] may bring a civil action in the appropriate United States district court against the person who violated” the Act.

Republicans were immediately concerned. Who is a person “acting under color of state law”? Many GOP lawmakers believed that would include religious-affiliated adoption agencies that work closely with state governments in several states. The act, if it became law, would become a wellspring of new lawsuits targeting religious-affiliated agencies that did not believe in gay marriage and did not want to place children in gay marriage homes. Perhaps the IRS would cancel those agencies’ tax exemption. There was a lot to worry about. Still, the bill passed the House with 267 votes — all 220 Democrats and 47 Republicans.

Then it went to the Senate. Many Republicans there had the same objection — the lawsuit objection — and sought to add an amendment that might protect adoption agencies. The Senate added an amendment to the bill headlined, “No Impact On Religious Liberty And Conscience.” It said that nothing in the act “shall be construed to diminish or abrogate a religious liberty or conscience protection” that is in the Constitution or law. It said that “nonprofit religious organizations … shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” It said nothing in the act “shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person, including tax-exempt status.”

It sounded good. But the amendment did not create a “private right of action” to sue for anyone who felt that the government had punished them for opposition to gay marriage. In other words, it gave the right to sue to one side but not to the other. A number of conservatives envisioned gay marriage activists moving to a state where an adoption agency did not recognize gay marriage and filing a lawsuit in an attempt to put that agency out of business. The bill specifically provided for that. But it did not provide a similar authority for an agency that believed it was unfairly targeted for a position opposing gay marriage.

Sen. Mike Lee (R-UT) offered another amendment that he said would solve the problem. It said the federal government “shall not take any discriminatory action against a person, wholly or partially on the basis that such person speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that marriage is or should be recognized as 1) a union of one man and one woman; or 2) two individuals as recognized under federal law.”

That, supporters of the amendment argued, would fix the deficiencies of the original bill. But the Senate refused to take up Lee’s amendment. Instead, proponents, after having waited until the midterm elections were over and any immediate political threat averted, held the vote to move the act forward. Democrats were heartened when those 12 Republicans joined all 50 Democrats to give the act the go-ahead.

Once the act is finally passed and signed into law, we will see whether it is simply a redundant protection of gay marriage already protected by the Supreme Court as a constitutional right or whether it is a lawsuit factory leading to a new wave of activism against religious conservatives around the country. We don’t know what will happen. But we do know that activists love to file lawsuits, and they have just been given a new way to do so.

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