Last month, when the Supreme Court overturned Roe v. Wade, and reversed 50 years of abortion rights jurisprudence, the dissent predicted that the court’s reasoning could be used to challenge other cases involving individual freedoms, including the right to use contraception and the right to marry a same-sex partner. The dissent’s warning was clear: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” And while the majority opinion promised that was not the case, Justice Clarence Thomas said otherwise — and suggested the conservative majority of the court might not be done with decisions that are ”demonstrably erroneous” and which the court has a duty to “correct.”
Considering that large majorities of Americans support the right to an abortion, contraception, gay marriage and interracial marriage — all rights that were considered well settled until this year — there have been concerted efforts to address those issues through federal legislation, in an effort to establish a national standard.
Last week, House Democrats, joined by 47 Republicans, passed the Respect for Marriage Act by a vote of 267-157. Virginia’s four House Republicans and Maryland’s single Republican member voted against the bill.
The act’s chief purpose is to repeal the Defense of Marriage Act, which makes same-sex marriage illegal. That law was overturned by the court in its 2015 Obergefell v. Hodges decision. Under the new law, same-sex marriage would be permitted under federal law and would prohibit states from discrimination against marriage decisions of two people “on the basis of sex, race, ethnicity or national origin.”
The Respect for Marriage Act is not about holy wedlock. It is about civil rights. And since a resounding 70% of U.S. adults say that same-sex such unions should be recognized by law — a majority that includes 83% of Democrats and 55% of Republicans — it is time for the Senate to act.
A bill similar to the House bill, sponsored by Sen. Tammy Baldwin (D-Wis.) and co-sponsored by Republican Sens. Susan Collins of Maine and Rob Portman of Ohio, needs eight more Republican senators to pass the filibuster threshold. But those Republican votes may be difficult to find. While Sen. Lisa Murkowski of Alaska is leaning toward support, others like Sen. Marco Rubio of Florida call the House bill a “stupid waste of time,” and Sen. Mitt Romney of Utah was joined by others in seeking to deflect consideration when he said, “I don’t think we need to lose sleep over it unless there were a development that suggested the law was going to be changed.”
Romney’s approach is wrong. As we learned from the Dobbs decision on the right to an abortion, it is always too early until it’s too late. And the disturbing yet honest warning from Justice Thomas is precisely the kind of “development” that should cause the Senate to act, and to enshrine in law the right to marriage that most of this country considers self-evident.