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Monday, December 11, 2023 | Back issues
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Thomas opinion triggers House vote to protect marriage equality

The chamber voted to enshrine the right to same-sex marriage after Justice Clarence Thomas wrote in a concurring opinion that the Supreme Court ruling establishing the right should be reconsidered.

WASHINGTON (CN) — Rattled by a Supreme Court seemingly poised to reevaluate and overturn precedents, House Democrats passed legislation Tuesday to protect the federal right to marriage equality, which advocates worry could be the next constitutional freedom in the high court's crosshairs.

The House passed the Respect for Marriage Act by a vote of 267-157. The bill aims to codify into federal law the right to same-sex marriage established in the 2015 Supreme Court decision Obergefell v. Hodges. It faces an uphill battle in the Senate.

The bill would require that all states recognize marriages legally conducted in other states and repeal the Defense of Marriage Act, a 1996 law that defined a legal marriage as one between a man and a woman.

The now-invalid legislation is still on the books and repealing it would be a precautionary measure as progressives warn that the Supreme Court's decision to overturn Roe v. Wade is setting the stage for a takedown of other constitutional rights, including the right to same-sex marriage.

The House vote comes three weeks after the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the high court had gone too far when it interpreted the Constitution to protect the right to an abortion nearly 50 years ago.

"These radical justices took a wrecking ball to precedent of the court and privacy in the Constitution and placed even more of our cherished freedoms on the chopping block," Speaker of the House Nancy Pelosi said Tuesday.

Not only did the majority opinion eviscerate abortion access, but a concurrence from Justice Clarence Thomas suggested the court may be headed toward a dismantling of other previously established constitutional rights that hinge on substantive due process and the right to privacy, including marriage equality; contraception access, as established in Griswold v. Connecticut; and the right to sexual relations, as established in Lawrence v. Texas.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including GriswoldLawrence, and Obergefell,” Thomas wrote in his concurring opinion. “Because any substantive due process decision is 'demonstrably erroneous' we have a duty to 'correct the error' established in those precedents.”

Thomas' opinion notably avoided listing Loving v. Virginia, the 1967 case that guaranteed the constitutional right to interracial marriage, though that high court decision also hinged on substantive due process claims. Thomas, who is Black, is married to Virginia "Ginni" Thomas, who is white.

House Democrats are moving swiftly in response to Thomas' musings.

"Make no mistake, while his legal reasoning is twisted and unsound, it is crucial that we take Justice Thomas and the extremist movement behind him at their word. This is what they intend to do," Pelosi said.

Democratic Representative Mondaire Jones of New York, who is gay, took to the floor Tuesday, recalling how he felt when the New York State Legislature passed marriage equality legislation in 2011.

"I was still closeted, and I was so afraid that someone might find out the truth about my being gay. So, I closed the door to my room and cried tears of joy. Finally, my home state of New York had recognized me as a full human being, affirming all of those scary yet beautiful feelings that I had bottled up inside for decades, wondering, hoping one day the world would change. Four years later, the Supreme Court's decision in Obergefell sent that message to millions of LGBTQ+ Americans," Jones said.

In addition to the vote to enshrine the right to marriage equality, the House voted last week to codify the right to abortion into federal law and the chamber is expected to hold a vote on protecting the right to contraception access later this week.

Republicans condemned Tuesday's vote, with many deeming the legislation unnecessary and claiming the court has no intention of going after marriage equality or contraception.

"They've manufactured this crisis, this demeaning, divisive debate, trying to reopen a Pandora's box that no one has opened except the Democrats," Representative Mike Johnson, a Republican from Louisiana, said on the House floor Tuesday.

Democratic Representative Jerry Nadler, chairman of the House Judiciary Committee, argued back at Republicans opposing the bill, asserting that the legislation aims to safeguard a right in the event the court does one day overturn Obergefell.

"This is about a fundamental fairness in our system, ensuring that people can marry the person they love. And if it's not necessary, you can vote for it. If you're right that we're worried and we shouldn't be, reaffirm it, but don't hide behind that to justify your refusal to vote for marriage equality in this country," Nadler said

The bill faces a tough battle in the 50-50 Senate, which failed to pass legislation protecting abortion access earlier this year, and the filibuster poses a major hurdle to the advancement of the other House bills.

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