President Joe Biden’s White House held a big event on Tuesday to celebrate his signing into law of H.R.8404, the so-called Respect for Marriage Act, that codifies as federal law the right of individuals to enter into same-sex or interracial marriages.
In the view of the Washington Examiner‘s Byron York, the fanfare of the White House was odd in light of the fact that same-sex and interracial marriages were already protected and this legislation was a supposed fix in search of a non-existent problem.
In fact, York wrote that the “new law seeks to ‘protect’ same-sex marriage in the U.S. from those forces that seek to undermine it or, to be more accurate, from those forces Democrats believe are seeking to undermine it or, to be even more accurate, from those forces Democrats want you to believe are seeking to undermine it.”
Marriages already protected by law
As noted by York, same-sex marriage has been legal and protected nationwide since the Supreme Court’s 2015 Obergefell v. Hodges decision, and there is no serious or legitimate legislation or litigation anywhere that seeks to overturn that ruling over the past seven years.
Likewise, interracial marriages have been legal and protected nationwide since the 1967 Loving v. Virginia ruling from the Supreme Court and, again, there are no pending bills or lawsuits anywhere in America that seek to outlaw marriage between individuals of different races.
Thus, this new law seeks to protect and prohibit that which was already protected and prohibited by virtue of precedential rulings from the nation’s highest court — same-sex and interracial marriages are already permitted in all states and all states are barred from discriminating against married couples based on their racial or sexual identities.
Democratic narrative on Thomas’ concurrence in Dobbs decision
So what was the basis for the supposed need for this new law that warranted a celebratory event at the White House? It would appear to be the concurrence authored by Justice Clarence Thomas in the Supreme Court’s Dobbs ruling in June on abortion rights that overturned the precedent set in 1973 by Roe v. Wade.
In that non-binding concurring opinion from Thomas, he wrote that the Supreme Court in the future may need to “reconsider” the “demonstrably erroneous” underlying jurisprudence of “substantive due process” that was used by the high court to support prior rulings like Roe, Loving, Obergefell, and 1965’s Griswold v. Connecticut, which overruled state restrictions on contraceptives.
Democrats predictably seized upon that and fervently insisted that the Dobbs decision presented a “real and present threat of the reversal” of those previous decisions that fully legalized contraception and marriages between same-sex and interracial couples, York noted.
Yet, in the Dobbs majority opinion written by Justice Samuel Alito, he explicitly stressed that his reasoning for overturning Roe was unique to the abortion issue and was not in any way applicable to other rulings based on “substantive due process” as found in the Constitution’s 14th Amendment.
Furthermore, Thomas himself conceded in his concurrence that the aforementioned precedents unrelated to abortion were “not at issue” and wrote, “Thus, I agree that ‘[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion,'” suggesting that he sought to “reconsider” only the use of the dubious underlying jurisprudence and not the actual decisions themselves.
Questions remain about protections for religious beliefs
That said, while the new Respect for Marriage Act does literally nothing in terms of further protecting same-sex and interracial marriages, the Examiner’s York pointed out that it does appear to present a potential threat to religious liberty for some.
There is a provision within the law that allows for a “private right of action” against those who violate the Act “under color of State law,” which some Republicans and religious liberty advocates fear could be maliciously interpreted by some on the left to launch countless civil lawsuits against religious-affiliated defendants with connections to government, such as adoption agencies, for choosing to observe their sincere religious beliefs with regard to same-sex marriage issues.
However, a separate provision within the new law specifically prohibits the Act from being “construed to diminish or abrogate a religious liberty or conscience protection” for private individuals and organizations with sincere religious beliefs who choose not to participate in same-sex marriage and doesn’t allow for lawsuits against them.