The House passed the Respect for Marriage Act this morning and sent it to President Biden for his signature:
The legislation repeals the Defense of Marriage Act, which defines marriage as between a man and a woman and allows states to refuse to honor same-sex marriages performed in other states. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity.
But in a condition that Republican backers insisted upon, it would guarantee that religious organizations would not be required to provide any goods or services for the celebration of any marriage, and could not lose tax-exempt status or other benefits for refusing to recognize same-sex unions.
The bill was originally prompted by an aside in Clarence Thomas's concurring opinion in the Dobbs abortion case. In addition to reconsidering Roe v. Wade, he said, the court might also want to "reconsider" a few other things, including its defense of same-sex marriage. Now that's off the table:
“We can put to rest the worries of millions of loving couples who are concerned that someday an activist Supreme Court may take their rights and freedoms away,” said Sen. Tammy Baldwin (D-Wis.), the first openly gay person elected to the Senate. “We are giving these loving couples the certainty that their marriages are legal and that they will continue to have the same rights and responsibilities and benefits of every other married couple.”
I continue to wonder if this is true. Marriage has always been considered a state issue, not a federal one. It sure seems as if an activist Supreme Court could pretty easily say that Congress has no constitutional authority to regulate marriage other than in federal territories and in a few other special cases.
But they probably won't. Thomas's note was just a throwaway, the kind of thing he's been writing for decades and that everybody has been ignoring for decades. Plus the Respect for Marriage Act will make a difference. It was originally intended to be a symbolic vote, but in the end it turned out that lots of Republicans supported it too and it passed on a bipartisan basis. The Supreme Court has always been a political animal, and the fact that same-sex marriage has such widespread support makes it unlikely they'd ever want to touch it.
Same-sex marriage safe? Hah! Only until the Federalist Five get a case that will allow them to overturn Obergefell, so that the next unified Republican government can enact a national ban on marriage equality. And don't give me any whistling-past-the-graveyard assurances there's no constituency on the Supreme Court to overturn Obergefell--remember, the Federalist Five all assured us during their confirmations that they respected Roe as settled law.
After Bostock, I'm not inclined to believe that. The behavior of Gorsuch and Kavanaugh in that case strongly suggests that neither one of them is homophobic enough to be interested in overturning Obergefell. Thomas and Alito definitely would if given a chance. Barrett might, but she's shown a tendency to be cautious, and might also shy away from overturning a generally popular precedent that hasn't generated nearly as much backlash as Roe did. Roberts is a stickler for precedent and definitely won't. I could be wrong, but I don't think Obergefell is in danger.
Here's the problem: Obergefell (and Lawrence, and Griswold, and more) rests on the same logic as did Roe.
If the Supreme Court did not Obergefell when given an opportunity, the Court would be acknowledging that the logic behind Dobbs was contrived solely to end legal abortion in America.
There's plenty of legal precedent for a logical arrangement in which you basically say, "this principle applies most of the time but not for this, because another consideration overcomes it." Alito was pretty clear in the opinion that he was creating an arrangement of that type, treating abortion as a "bridge too far" in the realm of privacy rights without overturning privacy rights as such. I know I could be wrong, and Dobbs is still worthy of lamenting, but it's hard for me to worry about slippage when the opinion has so much verbiage clearly stating that it doesn't set a new precedent for anything other than abortion.
I don't think it is in danger right now. A couple more disasters on the court could change that.
Remember that this is all about the median vote, which has been ratcheting rightward with each new Federalist justice. Before the Mitch & Don show, Dobbs was impossible, too.
This is true. But remember that things can swing in the other direction as well. Another rightward lurch of the court could happen, but an unexpected leftward lurch could also happen.
It could, but we should hardly count on it.
Given how young the Federalist 5 are (Thomas excepted) we will have a long time to wait before that can happen. Thomas will likely retire strategically just like Kennedy did (and Bader Ginsburg refused to do!). Plus the GOP know now how to hold a seat open for themselves should it become available during a D administration.
Sure Oberfell could be overturned, at which point states that do not wish to allow SSM would not be required to perform such marriages-- but would still be required to A) recognize all existing marriages and B) recognize new marriages performed in other states.
"The Supreme Court has always been a political animal, and the fact that same-sex marriage has such widespread support makes it unlikely they'd ever want to touch it."
Poll after poll said Americans wanted abortion to be legal, if restricted. The Supremes gave the states permission to ban it.
Poll after poll say Americans want limits on owning and bearing guns. The Supremes made it functionally impossible to limit either.
The Supremes won't give an airborne intercourse about how popular marriage-equality is--after all, they can't be voted out of office.
Indeed!
Poll after poll said Americans wanted abortion to be legal, if restricted.
Abortion is legal in America, but restricted based on location. The polling you cite is probably why the Supreme Court won't attempt to ban it nationally (if they wanted to, they could definitely gin up a rationale for protecting fetuses under the constitution).
The Court cannot create positive law. If abortion is ever to be banned nationally that would have to be the work of Congress.
As one- or two in this case- can travel from a non allowing state for a marriage in another state where it is legal, and then return home with a valid marriage which must be recognized by the local authorities, this does protect possibilities for folks.
As with the overturning of Roe, as soon as the Obergfell case is overturned all the states with same sex marriage bans will have them take effect again. Is that right?
No constitutional authority to REGULATE marriage? True.
HOWEVER...
Article IV
Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Congress DOES have the authority to prescribe the manner in which the marriages performed in one state shall be proved so that the other states, in conformance to this article and section, MUST recognize those marriages, even if in their own state such a marriage would not be allowed.
Bottom line--This legislation as well as the prior legislation is moot (and in the case of the prior legislation is also invalid). I do not have the faintest idea how the previous Congress thought to get around Article IV.
This. Marriage is a contract and Congress certainly has the power to force states to recognize contracts entered into in other states. It would be a mess if contracts (including marriage) could be dissolved simply by one signing party moving across state lines.
Except this is pretty close to the case. The marriage "contract" which was entered into in one state will be subject to the laws of the state (or country) which one of the contractees resides. Transferability of jurisdiction is both one of the best and worst things about the marriage contract. Moreover establishing venue for divorce can be pretty contentious in many cases because of the differences in law between states. And don't get me started that the marriage contract is pretty much the only enforceable contract where the terms are not disclosed at signing.
Before no fault divorce people wanting quickie divorces headed to Nevada to get them. Did their home states ever refuse to recognize those divorces?
the idea that thomas saying "in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell" is a throwaway line is absurd. there are no throwaway lines in scotus opinions. he meant exactly what he said and further what it implies, that he wants to overturn all those rulings. i mean jesus, kevin, they JUST overturned roe and you still think they right wing is just kidding around? maybe they don't have the votes to do it, but they (with thomas in the lead) are sure as hell serious about it.
Thomas is one vote and a decision requires five. Alito, who wrote the actual majority opinion, went out of his way to expressly stipulate that he was not attacking, or implying that a possible future attack would be successful against, Griswold or any other case; he stated point blank that Dobbs concerned abortion only. The fact that he felt the need to spell that out (important to remember here that the spellout is precedent) strongly implies that someone, or multiple someones, in the Dobbs majority wanted to make sure that the decision was thus limited, and that the necessary support for overturning those others is not there. I could be wrong, of course; but legal minds don't think in the same way as elected politicians.
sure, and as i said, i don't know that the votes are there to overturn these rulings, but my point was this was not a "throwaway" line. there is a powerful wing of the right who are dedicated to trying.
"Alito, who wrote the actual majority opinion, went out of his way to expressly stipulate that he was not attacking, or implying that a possible future attack would be successful against, Griswold [...]"
He also lied his ass off under oath in his confirmation, and is currently most likely lying about leaking decisions to his fellow travelers.
Not that kind of man I'd trust to use my bathroom, let alone entrust my rights to.
DING DING DING DING
Alito would overturn O'fell in a heartbeat.
I don’t doubt that Alito, and probably Coney Barrett would vote to overturn Obergefell, but why would they stir up the opposition now? See how they vote when a case comes before the Court.
It still sets my teeth on edge every time someone says or writes "same-sex marriage."
No adjectives or other qualifiers are needed. It's "marriage," pure and simple, and "marriage equality" is even better. Anything else implies there's something different, perhaps something lesser, about two people of the same-gender taking votes and taking up filing jointly.
i get your point, and in general parlance i would never specify "same sex". but in the context of this legal and political fight, there is a specific subset of married people they are targeting, and it is ones where the couple are of the same sex. similarly i would never refer to an "interracial marriage" except in the context of people trying to make that specific type of marriage illegal.
It is different. A same sex marriage is not the same as a natural marriage. It was just ten years ago or less that virtually every single democrat was against same sex marriage.
"Natural" marriage? WTF?
"Equal marriage" is good.
Fuck off troll.
Marriage between two people of the same sex was not legally recognized for most of this country's history. So, what language are people supposed to employ to accurately talk about this issue? And "marriage equality" is fine if you prefer that, but for much of this country's history, marriages between Black and white people was likewise banned. "Same sex marriage" is thus simple, clear, anodyne English that describes the phenomenon of, uh, two people of the same sex getting married. (I think "gay marriage" should be a perfectly acceptable term also, though that one seems to have lost steam).
The problem with "gay marriage" as a term is that it specifies a sexuality which is only assumed in "same-sex marriage" - the latter of which is a neutral descriptor of the subset of marriages which are under attack here, as has been pointed out above.
Not mentioned nearly as often as it should be: The new law also protects marriages of two persons of different races.
Very few people actually believe Loving would ever be overturned, but given the current Court no civil right should be taken for granted. So now, after over half a century, we have a federal law that affirms the right the wonderful Lovings fought to provide for themselves and for countless couples ever since and forever to come.
Given that the most conservative justice is himself in an interracial marriage, I'm pretty sure Loving is safe.
It's still very good for Congress to affirm it. A message of validation to interracial couples, even if it doesn't change the practical implementation of the law, is worth a lot to a lot of people.
Idk. Thomas is also a beneficiary of lots of laws making it illegal for businesses to discriminate against black people and that isn’t going to stop him from ruling in favor of the web designer bitch who wants to open the door to businesses being able to refuse service to protected classes because God wants it that way.
"Given that the most conservative justice is himself in an interracial marriage, I'm pretty sure Loving is safe."
You think that would stop him??
Seriously, what would happen is that he would -allow- states to ban interracial marriage, making sure he lives where it wouldn't be banned.
Congress has the authority to regulate anything it wants to, provided it does not abridge the freedoms specified by the Constitution. It can certainly tell state governments that they must recognize marriages from other states. It may have less authority to tell churches what to do, at least according to the current Republican Supreme Court, so this bill should ideally cause no objection from them. But the Republican Justices will do what they want to do anyway.
Kevin, I'll remind you of the story about the scorpion asking the frog for a ride across the river. When someone shows you who they are, believe them.
For suitable definitions of the word "lots." In the Senate, lots = 12 out of 48. I have a hard time thinking of 25% as lots.
Safe? That’s adorable. ….. safe only until you know who decides that the u.s. constitution is violating “The Bible” again.
But is freedom of religion safe?
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