Democrats have put a series of bills on the House floor that would protect Americans’ access to abortion and contraception, ability to cross state lines to obtain an abortion, and marriage equality. Republicans have voted overwhelmingly against all of them, with the most Republican defections coming on the bill to protect marriage equality. That split is an opportunity to protect one of the essential rights the conservative movement will continue urging their comrades on the Supreme Court to repeal.
Republican senators such as Marco Rubio and Ben Sasse, as well as conservative outlets such as National Review, have insisted that the Respect for Marriage Act is unnecessary because there is no case currently on its way to the Supreme Court that has the potential to overturn Obergefell v. Hodges, the decision that recognized the right of same-sex couples to marry. Rubio said he would vote against the bill because it was a “waste of our time on a non-issue.” Sasse told reporters that House Speaker Nancy Pelosi was “trying to divide America with culture wars. I think it’s just the same bullshit. She’s not an adult.”
This is nonsense. The majority reasoning in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade, is one that would invalidate Obergefell and allow states to destroy hundreds of thousands of families, notwithstanding the majority’s weak and insincere disclaimer that the decision applied only to abortion. In his concurrence, Justice Clarence Thomas took aim at Obergefell among other decisions as one granting rights not specifically enumerated in the Constitution, and therefore a decision that should be overturned. There is absolutely no reason to believe that fundamental rights of same-sex couples are safe. Conservative activists want Obergefell overturned, and will try to make it happen at the first opportunity, because they do not believe that same-sex couples should have the right to marry. Reassurances to the contrary are meaningless, because the same sources that say these rights are not now at risk said similar things about Roe. It is also political strategy: Because they know that repealing marriage equality is an unpopular position, they wish to deny what they are doing right up until the moment it becomes possible. Although no one can predict what the justices themselves will do with complete certainty, Republicans in Congress are now on record as overwhelmingly supportive of the agenda Thomas outlined and the society it would impose.
[Read: How gay marriage became a constitutional right]
The reason some Republican senators are complaining about the existence of a marriage-equality bill is that they do not want to be forced to take a real position on the issue. They do not want to publicly take the unpopular position, even among the Republican rank and file, that these families should be destroyed, but they also do not want to do what is necessary to protect them and potentially earn the wrath of right-wing media and other members of their political coalition. This is cowardice, but also a GOP plan for as long as they can hold the Court: to avoid taking risky stands in Congress while the conservative justices act as a super-legislature that imposes an unpopular right-wing legal agenda on the entire country. Because the justices cannot be voted out of office, they can take the heat for imposing policies that elected officials would be nervous about supporting. If marriage equality were truly a “non-issue,” passage of the bill would be assured; GOP legislators are waiting for the Court to do their dirty work for them.
Opposing this legislation on pretextual grounds is not even a particularly effective form of avoidance. There is no functional difference between opposing a bill ensuring that marriage rights continue to be recognized because you hate same-sex couples, or because there is currently no case or controversy in the federal courts. In the latter case, you simply lack the self-awareness or courage to admit what you are, even as you hold public office and purport to lecture others on their lack of moral fiber and personal integrity.
Hiding behind federalism on marriage equality is a political maneuver of relatively recent vintage—Republicans wanted a constitutional amendment banning same-sex marriage right up until the point it became politically inconvenient. Whatever these politicians privately believe is irrelevant: Their position is that same-sex couples should be deprived of the “vital personal rights essential to the orderly pursuit of happiness” that these elected officials currently enjoy. A commitment to federalism, even if entirely sincere, is not a license to deny groups of people equal protection of the law.
Federal legislation would not prevent the 6–3 right-wing majority on the Supreme Court from invalidating these rights, but it would raise the political cost of doing so for the Court, and close off one avenue of legal argument for those who want to hide their opposition to marriage equality behind complaints about past judicial activism. Even a slim chance that such legislation would make enough of the justices think twice about trying to invalidate the right to marriage makes the bill worth passing.
Contrary to Sasse’s blubbering about dividing the country, if the legislation were passed and successfully dissuaded the Supreme Court from trying to invalidate marriage equality, it would leave Democrats without a popular issue with which to criticize Republicans. And that’s good, because the duty of the Democratic Party should be to make sure their constituents—and by extension, all Americans—can retain their basic rights, not to have culture-war grievances to run on forever. I can understand, however, why Republican elected officials, used to offering their constituents little more than a steady diet of culture-war red meat, might have trouble grasping the concept.
If Congress passes the Respect for Marriage Act, codifying marriage equality into federal law, the Supreme Court could strike it down as unconstitutional under the same states-rights framework it used to overturn Roe.
And Congress should pass the bill anyway.
