Some members of the U.S. Senate and House of Representatives are working to codify marriage equality before it becomes the next law on the Supreme Court’s chopping block.
According to NBC News, members of the U.S. Congress have introduced the Respect for Marriage Act in both chambers. The legislation would repeal the Defense of Marriage Act or DOMA from 1996. The law defined marriage as a union between one man and one woman.
While the Supreme Court has ruled that preventing the government from recognizing same-sex marriage for the purposes of determining federal benefits was unconstitutional, the law has technically remained in place. So if the Supreme Court were to repeal Obergefell v. Hodges, the law could be used to block same-sex marriages in select states.
As The Hill reports, the legislation would also address a national patchwork of marriage laws to require states legally recognize same-sex and interracial marriages if those marriages are valid in the states in which they were performed. The bill is scheduled for a floor vote this week in the House of Representatives, according to House Majority Leader Steny Hoyer (D-Md).
“LGBTQ Americans and those in interracial marriages deserve to have certainty that they will continue to have their right to equal marriage recognized, no matter where they live, should the Court act on Justice Thomas’ draconian suggestion,” Hoyer said on Monday.
“If Justice Thomas’s concurrence teaches anything it’s that we cannot let your guard down or the rights and freedoms that we have come to cherish will vanish into a cloud of radical ideology and dubious legal reasoning,” House Judiciary Committee Chairman Rep. Jerrold Nadler (D-NY), one of the bill’s sponsors, said Monday in a statement. “As this Court may take aim at other fundamental rights, we cannot sit idly by as the hard-earned gains of the Equality movement are systematically eroded.”
Since Roe v. Wade was reversed earlier this summer, many have wondered if same-sex marriage is next to be rolled back. Shortly after the now infamous ruling, Supreme Court Justice Clarence Thomas said the court should reconsider Obergefell v. Hodges. That ruling established marriage equality across the entire United States of America. His reasoning is that the Due Process Clause of the 14th Amendment to the U.S. Constitution “does not secure any substantive rights.”
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Unfortunately, the Supreme Court Justice isn’t alone in this thinking. Many conservative politicians have signaled at a desire to target marriage equality. Last week, Senator ted Cruz stated that the US Supreme Court was “clearly wrong” in the 2015 ruling, according to CNN.
“Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” Cruz said in a clip posted on his YouTube channel for his podcast. “Marriage was always an issue that was left to the states. We saw states before Obergefell, some states were moving to allow gay marriage, other states were moving to allow civil partnerships. There were different standards that the states were adopting.”
He added: “The way the Constitution set up for you to advance that position is to convince your fellow citizens, and if you succeeded in convincing your fellow citizens, then your state would change the laws to reflect those views. In Obergefell, the court said, ‘No, we know better than you guys do, and now every state must, must sanction and permit gay marriage.’”
“I think that decision was clearly wrong when it was decided,” Cruz continued. ‘It was the court overreaching.”
That said, Cruz covered his tracks by stating he doesn’t think overturning the ruling will happen due to the chaos it would create.
“You’ve got a ton of people who have entered into gay marriages and it would be more than a little chaotic for the court to do something that somehow disrupted those marriages that have been entered into in accordance with the law,” Cruz said. “I think that would be a factor that would, would counsel restraint, that the court would be concerned about. But to be honest, I don’t think this court has any appetite for overturning any of these decisions.”
With conservative voices circling around the idea of repealing same-sex marriage, it’s important that congress is working to codify the law. And standing alongside them are several LGBTQ and civil rights organizations such as the HRC, PFLAG, Lambda Legal, Equality Federation, Family Equality, National Women’s Law Center, GLBTQ Legal Advocates and Defenders, and more.