When the Supreme Court overturned Roe v. Wade, effectively allowing Missouri and other red states to immediately outlaw abortion, many who supported that decision scoffed at warnings that same-sex marriage and even interracial marriage rights could be next. Now, as congressional Democrats and some Republicans push legislation to protect marriage at the federal level, opposition from Missouri Sen. Josh Hawley and other conservatives shows that there is, in fact, a genuine threat to existing marriages.
In overturning Roe earlier this year, the court’s conservative majority rejected Roe’s constitutional underpinning, which was that the 14th Amendment provides a right to individual privacy from intrusion by the federal government or the states. The problem is, that’s the same legal theory the court attached to separate rulings guaranteeing other rights — to same-sex relationships and marriage, to interracial marriage, to contraception. To deny one on that basis is to put the others in jeopardy.
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Justice Samuel Alito stressed in his majority opinion that overturning Roe didn’t affect those other rights. But Justice Clarence Thomas suggested in a concurring opinion that it should lead to reconsideration of rights to same-sex marriage and contraception. (Notably, Thomas didn’t mention the right to interracial marriages like his own.)
That threat is why Congress is moving now to approve the Respect for Marriage Act. Contrary to the misinformation that opponents have been spreading about it, the measure wouldn’t legalize polygamy, infringe on individual religious beliefs or even force states to legalize gay marriage in their statutes.
It would require the federal government and state governments to provide the same recognition and benefits to same-sex couples who were married in states that allow it as they do to other married couples. That includes things like earned Social Security, Medicare or disability benefits for spouses, the right to visit ill spouses in hospitals and decision-making rights on medical issues. The protections would also apply to interracial marriages.
Missouri is among the states that still have now-unenforceable same-sex marriage bans on their books — bans that would go back into effect if the Supreme Court ever reverses its 2015 decision in Obergefell v. Hodges that made such marriages a constitutional right. That’s why it’s urgent that Congress codify that right into federal law rather than relying on the word of conservative justices who have already shown a willingness to trash precedent in service to partisan ideology.
If Hawley and other opponents succeed in preventing passage of the measure, and Obergefell later falls, it would mean devastating real-world impacts on hundreds of thousands of American same-sex married couples — committed unions that, in places like Missouri, would suddenly find no recognition in law. The fact that a majority of congressional Republicans are willing to risk that injustice rather than ensure it doesn’t happen is the clearest argument for passing this law.