Thursday, December 01, 2022

Imperfect, but still a win

Yesterday, the US Senate voted 61-36 to pass the “Respect for Marriage Act” which will protect same-sex and interracial marriages in the USA from destruction by radical judges on the US Supreme Court. The bill now goes to the US House for it to pass the amended bill. The need to pass the legislation became urgent when the Supreme Court’s radical majority voted to end a 50-year-old constitutional right to abortion, paving the way for more rights to be taken away. The bill is not perfect—no bill ever is—however, it’s still a major victory for fairness, justice, and common sense, which makes it worthy of praise.

The new law, if, as expected, passes the House and is signed by the president, will protect same-gender and interracial marriages, even if the radicals on the Supreme Court overturn rulings that established those rights. To understand what the bill will do, and why it’s necessary, we first need to review how we got to this point.

Ever since the Supreme Court handed down the landmark 1973 Roe v. Wade decision, which established a constitutional right to abortion, hardcore conservatives worked and schemed to find a way to overturn it. They slowly packed the Supreme Court with far-right extremist justices, finally adding three more such extremists during the term of the Republican occupant of the White House 2017-2021, done prior to his huge election loss in 2020.

In June of this year, all that cynical political manoeuvring by Republican extremists paid off in the Dobbs v. Jackson Women's Health Organization decision, which took away the 50-year-old constitutional right to abortion. The radical Republicans emphasised they were far from finished with taking away people’s rights.

The decision, written by Samuel Alito, who has often expressed his utter contempt for anyone who doesn’t share his peculiar far-right religious views, blandly claimed the decision wasn’t related to any other decision, though no rational person believed he actually meant it. He’s used every opportunity to trash all the legal precedents on which the Roe decision was based—and those same precedents also underpinned several other constitutional rights guaranteed by Supreme Court rulings. The relevant decisions, and the rights they guaranteed, now at risk of being overturned are:

Griswold v. Connecticut: The 1965 ruling established the right to use contraception, underpinned by a right to privacy;

Loving v. Virginia: The 1967 ruling established the right to interracial marriage, underpinned by a right to privacy, as well as the Griswold ruling;

Lawrence v. Texas: The 2003 ruling established the right of same-sex couples to have intimate relationships, and was underpinned by a right to privacy, and the Griswold and Loving rulings.

Obergefell v. Hodges: The 2015 ruling established the right to same-gender marriage, underpinned by a right to privacy, as well as the Griswold, Loving, and Lawrence rulings.

Of those rulings, the Respect for Marriage Act will help secure the right to marriage enshrined in both Loving and Obergefell, but will do little to help preserve the right to contraception or private intimate relations, nor can it protect the actual rulings in both Loving and Obergefell. It’s important to note that the radicals on the Supreme Court may still overturn all of those decisions, and that would allow states to make contraception, interracial marriage, private intimate relations, and same-sex marriage illegal in those states. The Respect for Marriage Act can only partially preserve part of the constitutional rights that US citizens now have because of all those rulings that are currently in grave danger.

Here’s how the Respect for Marriage Act can help.

The first thing it will do is repeal the infamous “Defense [sic] of Marriage Act”, a 1996 law that declared in Section 3, “the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.” Section 3 was ruled unconstitutional by the Supreme Court in 2013 in United States v. Windsor, based on the Equal Protection clause of the Constitution, however, the rest of the law remained in place, and Section 2 was a huge threat if Obergefell is overturned:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
This section was intended to void the Constitution’s Full Faith and Credit Clause as it relates to same-gender marriage. By repealing what’s left of DOMA, same-gender marriages will remain legal, even if the Supreme Court overturns Obergefell.

The Respect for Marriage Act will also require states to recognise legal marriages performed in other states, and they can’t discriminate “on the basis of the sex, race, ethnicity, or national origin of those [married] individuals”, and that “only the law of the jurisdiction applicable at the time the marriage was entered into may be considered,’’ and, further, a marriage performed overseas would also be valid if “the marriage could have been entered into in a State”. This is at the core of the whole issue: The Loving case happened in the first place, after all, because an interracial couple, Richard and Mildred Loving, were married in the District of Columbia, where interracial marriage was legal, and went back to Virginia, where it absolutely was NOT.

What’s going on legally is that the Respect for Marriage Act will enshrine in law that for federal purposes the standard for a valid marriage will be “place of solemnisation” (also called “place of celebration”), not “place of residence”. This means that an interracial or same-gender marriage performed in a state (or foreign country) where it’s legal will have to be recognised as legally married in states where it’s not legal. So, if (when?) the Supreme Court overturns Obergefell, a same-gender couple married in, say, New York will still be legally married if they move to Texas, a state absolutely certain to outlaw same-gender marriage if Obergefell is overturned (assuming their previous ban isn’t automatically reinstated).

There will be many thorns on the path to preserving liberty: A backward state might defy the Respect for Marriage Act and refuse to recognise an out-of-state same-gender marriage, for example, leaving it up to the Supreme Court to enforce it—if, in fact, the radicals do enforce it, because they could strike down the Act, or even just the full faith and credit provision. Or, backward states may simply refuse to recognise a same-gender marriage where one or both of the individuals are citizens of and/or ordinarily resident in their backward state, but travelled to a free state to marry. The Supreme Court might side with such a backward state.

Those risks aside, the Respect Marriage Act is currently the best hope to protect the constitutional right to interracial and same-gender marriage from the radicals on the Supreme Court. A stronger solution would be to pack the Supreme Court with rational, sensible, non-partisan, non-sectarian justices who actually believe in the rule of law and who would be certain to uphold their oath to defend the US Constitution, and so, its protection of individual freedom and liberty. That seems unlikely to happen, which leaves the Respect for Marriage Act as the best option there is until a brighter, saner day in the future when christofascism is defeated.

Some critics are upset about the carve-outs for conservative religionists (specifically allowing them to not participate in same-gender marriages without legal recourse for any couples discriminated against), and, yeah, I completely get that; I personally abhor special rights for rightwing religionists to impose their beliefs on everyone. However, I have ALWAYS believed that taking 75% of what we want now is FAR better than rejecting that and risking losing 100%.

I saw a commentator say that the better option would be to work to amend state constitutions, like a few states are doing on abortion rights. That’s a lovely idea that will do absolutely nothing right now. The Respect for Marriage Act is the only shot we have at preserving, protecting, and defending a nationwide constitutional right to same-gender marriage. If both Obergefell and the Respect for Marriage Act are struck down, same-gender marriage in free states would still be legal. Sure, if the radicals on the Supreme Court threw out Obergefell, Republicans would propose a nationwide legislative ban on same-gender marriage, but promising a nationwide ban on abortions in the wake of the Dobbs decision hurt the party in the recent US Midterm Elections; a clear majority of Americans appears to oppose Republicans’ culture war attempts to destroy constitutional rights and liberties.

Finally, while the Respect for Marriage Act would protect interracial and same-gender marriages, it’s important to note that it’s highly improbable that any US state would try to enact an outright ban interracial marriage: All states that had such laws in 1967 have repealed them (in 2000, Alabama became the last state to repeal a ban on interracial marriage). For that situation to change, things would have to have become very dire, indeed, and there would probably be a long list of threats to liberty and freedom if that was to happen.

The Respect for Marriage Act, then, is currently the best hope for preserving the right of same-gender couples to marry if the radicals on the Supreme Court overturn Obergefell. It doesn’t compel states to perform marriages for same-gender couples, as Obergefell does, but it’s not clear that a federal law could do that. It also has carve-outs for conservative religionists that, while distasteful, are quite common (they exist in many laws around the world, including New Zealand’s). And, of course, it does nothing to preserve the right to access contraception or the right to have intimate personal relations, which are also under threat from the radicals on the Supreme Court, because both of those are beyond the scope of a law about marriage—and any bill protecting both those rights would attract fierce opposition from far-rightwing politicians and lobby groups.

So, yeah, the Respect for Marriage Act is not perfect, however, it’s still a major victory for fairness, justice, and common sense. It’s entirely worthy of praise.

See also: "The fine print of the Respect for Marriage Act" from CNN, which has a really good summation of how far this USA has evolved on the issue.


Roger Owen Green said...

Linking to this.

Arthur Schenck said...

Thanks! I'm sure you can relate: This post was quite a lot of work.