First of two articles
With civil rights facing new risks in a deeply conservative Supreme Court, President Biden on Tuesday is scheduled to take a step to provide new – but limited – legal protection for same-sex marriage.
Acting quickly in direct response to the possibility that the Court could put an end to the constitutional right to marry a partner of the same sex, Congress has stepped in with a modest but symbolically important new measure – the Respect for Marriage Act.
The Act is to become law with the President’s signature at a ceremony at the White House tomorrow afternoon. The Senate passed the bill late last month and the House voted last week to go along with that version, sending it to Biden, who supports it.
Of course, same-sex marriage remains a constitutional right in every state, as a result of the Supreme Court’s decision in Obergefell v. Hodges in 2015. As long as that precedent exists, no state may ban such unions. But it was new uncertainty about the durability of that precedent that led Congress to act.
That uncertainty arose last June 24 in a statement that Supreme Court Justice Clarence Thomas inserted into an opinion that he wrote only for himself, suggesting that the Obergefell decision be reconsidered. That statement came as the Court struck down the constitutional right to abortion, overruling Roe v. Wade. The future of same-sex marriage was not an issue that day, but Thomas nevertheless opted to address it anyway.
Both the Roe and Obergefell decisions were based on the same constitutional clause, the promise of “due process of law” in the 14th Amendment.
Thomas’s separate opinion in the abortion case, Dobbs v. Jackson Women’s Health Organization, argued that the concept of “due process” should not be interpreted to include same-sex marriage or other rights related to private and intimate relationships.
Other members of the Court sought in the Dobbs case to give some assurances that the ruling that day was only about abortion. But, since no other right was at issue in the case, such assurances cannot be treated as guarantees.
Thomas’s initiative galvanized supporters of same-sex marriage. For years, they have been trying to persuade Congress to “codify” the right to same-sex marriage by passing a new federal law, but that idea had repeatedly been stalled on Capitol Hill.
It took only a matter of weeks for Thomas’s comment to put new and urgent energy into that effort. Advocates reached for the most that Congress might have given: a new bill that would sweep across the country, broadly assuring that same-sex marriage was a federal right, nationwide, even if no longer protected by the Constitution.
Congress, though, did not do that. Instead, now moving with unusual speed but needing to compromise, it sought agreement on a more limited measure, and finally adopted a version of that as the final bill.
The House, in the initial version passed last July, sought to do three things: first, it would have required every state to recognize the validity of any marriage that was legal in the state where it had been performed; second, it would have formally repealed a 1996 federal law that had given states permission to refuse to recognize same-sex marriages performed in other states, and, third, it would have provided protection for interracial marriages in the same way as same-sex marriages would be.
In that form, states could still ban same-sex marriages of couples or interracial marriages to be performed in those states, if the day came that there were no longer rights under the Constitution for such unions. That was a distinct compromise, and it, in fact, stayed in the measure right through final passage.
The second point of the House version was primarily symbolic: the 1996 law that it would repeal had, in fact, been struck down as unconstitutional by the Supreme Court in 2013, but that decision did not actually erase it from the books and its enforcement might again arise if Obergefell were overruled. (The Court’s 2013 ruling was not based upon the 14th Amendment, which only applies to state governments; it was instead based upon a similar “due process” guarantee in the Fifth Amendment that applies to federal government actions.)
On the third point of the House measure, bans on interracial marriages had been ruled unconstitutional by the Supreme Court in 1967, and the provision would protect such marriages if the Court were to reverse course on marriage between partners of different races. (The 1967 decision was based in part on the “due process” guarantee in the 14th Amendment, but Thomas – himself a partner in an opposite-race marriage – had not included that decision on his list.)
The move to shore up same-sex marriages, in particular, faced considerable difficulty in the Senate. So, in order to get past a filibuster by opponents of the bill, and to get to the 60 votes that would be needed for passage in that chamber, a number of concessions had to be made in response to Republicans’ demands.
In the end, the Senate did include all three of the basic points of the initial House version, requiring recognition of valid same-sex marriages, doing the same for interracial marriages — but leaving states free to ban those unions if the federal rights ceased to exist, and repealing the 1996 federal law.
One of the most significant changes made in the Senate was a guarantee that any individual or organization that had a religious or “conscience” objection to same-sex marriage could not be coerced into actions in support of such marriages, if their objection had been given protection under the Constitution or federal law. It did not spell out how such protection would arise.
Another broad form of protection would be available to any non-profit organization that was specifically set up to pursue a religious mission, declaring that the organization or its employees could not be targeted by a lawsuit seeking to compel acceptance into that group’s activity by one or both partners in a same-sex marriage or to require any services connected to performance of a same-sex marriage.
Because that legal shield would be available only to a specifically dedicated religious institution, it would not insulate private commercial businesses from being sued by gay and lesbian couples related to their marriage. The Supreme Court, in the current term and in recent years, has been working out whether to give constitutional protection for religious-based refusals to provide commercial services to couples planning a same-sex wedding.
With those additions, the measure went back to the House, and in order to move the bill swiftly on to the White House, the House went along with the Senate version in full.
The protections added by the Senate for those opposed to same-sex unions are entirely new to federal law, and it will take years of court cases to test just how far those provisions go and what practical impact they will have on the right to same-sex marriage. (It seems that interracial marriages are no longer as controversial as same-sex unions.)
It is also highly likely that the basic foundation of the new legislation, requiring states to respect same-sex marriages performed legally in other states, will be tested in court, especially if the Obergefell decision is cast aside.
Is that limitation on states’ power vulnerable to such challenges? That will be discussed in a separate article appearing here tomorrow.