The future of marriage inequality?
The press needs to do a better job of covering Republicans' anti-LGBTQ sentiment and actions. Instead, it gives them way too much credit.
Happy Monday, all. Let’s start the week with a lengthy post for paid subscribers.
Since June 26, 2015, here are all the places in the United States where it’s legal for same-sex couples to get married: everywhere.
Easy, right? Okay, now let’s see what the state of marriage equality would look like if Obergefell v. Hodges, the Supreme Court case which acknowledged this right, were to be overturned…
Yeah, it turns out that there are many places with laws and/or state constitutions that could ban same-sex marriage if Obergefell were to be overturned!But hey, no need to worry about that, right? Well…
Supreme Court Justice Clarence Thomas has called on the court to revisit Obergefell, as well as several other landmark SCOTUS cases.
When the Supreme Court issued its Dobbs v. Jackson Women’s Health Organization ruling last month, which overturned 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey decisions, Justice Clarence Thomas used the occasion to publish a concurring opinion in which he argued that, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to past SCOTUS decisions that protected the right to legal contraception for married couples, decriminalized gay sex, and clarified that same-sex couples have just as much to marry as opposite-sex couples do.
Yeah, Thomas would like to wipe all of that out.
From his concurring opinion (117 pages into the document, text bolded by me for emphasis):
I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment). Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” United States v. Vaello Madero, 596 U. S. ___, ____ (2022) (THOMAS, J., concurring) (slip op., at 3) (internal quotation marks omitted). Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).
As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.
The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt. 14, §1; see McDonald, 561 U. S., at 806 (opinion of THOMAS, J.). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22. Moreover, apart from being a demonstrably incorrect reading of the Due Process Clause, the “legal fiction” of substantive due process is “particularly dangerous.” McDonald, 561 U. S., at 811 (opinion of THOMAS, J.); accord, Obergefell, 576 U. S., at 722 (THOMAS, J., dissenting). At least three dangers favor jettisoning the doctrine entirely.
A few months back, the Movement Advancement Project, a pro-equality, pro-LGBTQ think tank, published a “Policy Spotlight” report on the patchwork of laws granting or banning the ability of same-sex couples to get married. Here’s how the organization describes the implications of these laws:
The 2015 U.S. Supreme Court decision in Obergefell was the culmination of more than 30 years of work by LGBTQ advocates to advance marriage equality in state legislatures, at the ballot, and through the courts. The decision remains in place and has been affirmed by the U.S. Supreme Court in questions about related rights derived from marriage, including the ability of married same-sex couples to be legally recognized as parents to their children. At the same time, the current politicization of the Court and willingness to take up ‘hot button’ issues like access to abortion and affirmative action that have longstanding precedent, as well as the shift to the right, has some people concerned, especially given the emboldened efforts by conservative lawmakers and leaders to pass extreme legislation that is clearly designed to test the courts and given that conservative think tanks and lawmakers continue to include marriage equality as a target for their efforts.
That most states still have statutory and constitutional bans on the books, despite being currently unenforceable, could be a problem if Obergefell were to be overturned (which, as noted above, is not something that some scholars think is likely to occur). Eliminating those existing bans is challenging, however. The process for amending state constitutions is arduous and requires not only legislative action but also approval from voters. And many of the states that still have statutory bans on the books are places where efforts to pass nondiscrimination protections for LGBTQ have faced substantial barriers.
While there are many steps that would need to happen for these bans to be enforceable again, their existence continues to signal the extent to which marriage equality remains a politicized issue. This is evident in efforts in many states, and under the former Trump administration, to insert religious exemptions that, while still permitting same-sex couples to marry, mean that a growing number of individuals, businesses and taxpayer-funded agencies, and even government officials can refuse to recognize the marriages of samesex couples. Conservative think tanks and lawmakers continue to include marriage equality as a target for their efforts.
The ability of same-sex couples to marry is a fundamental right that extends far beyond simply gaining a marriage license. Marriage confers incredibly important benefits, including the ability to visit a spouse in the hospital and make medical decisions, the ability to stay living in a family home if a spouse dies, federal recognition for things ranging from Social Security benefits to tax filing as married couples, and a long list of parenting-related rights and benefits. The state patchwork of marriage laws that limited the ability of same-sex couples to marry prior to 2015 remains largely in place. Were the Court to overturn the Obergefell decision, the ability of couples to marry could again fall to the states, where a majority of states still have in place both bans in the law and in state constitutions.
The tl;dr is contained entirely in that final sentence: “Were the Court to overturn the Obergefell decision, the ability of couples to marry could again fall to the states, where a majority of states still have in place both bans in the law and in state constitutions.”
Democrats, for their part, have started taking action to protect the rights to marriage and contraception. They may not succeed.
Yes, the House of Representatives passed the Respect for Marriage Act by a vote of 267-157 (220 Democrats and 47 Republicans voted for it; all 157 votes against it were from Republicans). The bill repeals 1996’s Defense of Marriage Act, which prevented the federal government from legally recognizing same-sex couples. This portion of DOMA (Section 3) was struck down in 2013’s United States v. Windsor case. Repealing it would prevent the now-significantly-more-conservative Supreme Court from causing chaos by throwing out Obergefell and Windsor the next time it feels like upending precedent. Still, this bill doesn’t exactly codify Obergefell, as some have mistakenly claimed.
Here’s one of the bill’s shortfalls, as described by the ACLU:
The Respect for Marriage Act would not require any state to allow same-sex couples to marry.
If the Supreme Court overturns Obergefell v. Hodges, which established that the fundamental right to marry covers same-sex couples, the Respect for Marriage Act would not stop any state from once again refusing to issue marriage licenses to same-sex couples. The federal government would still be required to respect same-sex couples’ already-existing marriages, as would other states in many circumstances. But a state that wanted to get out of the business of issuing marriage licenses to same-sex couples would not violate the Respect for Marriage Act.
The ACLU adds that while this bill would be a step forward in protecting these rights, Congress needs to do more to address the ongoing legal attacks on LGBTQ rights:
While Congress debates and votes on the Respect for Marriage Act, the LGBTQ community remains under intense attack in the states. A record number of anti-trans and anti-LGBQ bills were introduced and passed in state legislatures over the past two years. These measures bar trans and non-binary people from access to health care, from updating their identity documents, and from full participation in daily life. They seek to erase trans people from society and to ban schools from talking about the mere existence of LGBTQ people.
Our freedom to marry indeed needs protection from Congress. But we also need to fight against these broader attacks on the LGBTQ community, especially trans and non-binary people. Passing the Equality Act would be a good start. Congress needs to fight as though trans lives depend on its actions, because they do.
Additionally, the Women’s Health Protection Act, a bill that would protect abortion services following Roe’s fall, passed the House by a vote of 219-210 (219 Democrats voted in favor of it; one Democrat and 209 Republicans voted against it). The bill has failed to overcome a Republican-led filibuster in the Senate.
The Right to Contraception Act would prevent states from reintroducing bans on contraception in the event that SCOTUS revisits and overturns Griswold. It passed the House by a vote of 228 to 195 (220 Democrats and eight Republicans voted in favor of it; 195 Republicans voted against it; two Republicans voted “present;” and six Republicans didn’t vote).
It’s unclear whether the Right to Contraception Act or Respect for Marriage Act will get the Republican support needed to bring the bills to the floor for up-or-down votes in the Senate (it takes 60 votes to overcome a filibuster, meaning that every Democrat and at least 10 Republicans have to agree to allow the bills to get votes; once a filibuster is broken, it can pass the Senate with a simple majority).
I’m worried that the press isn’t doing enough to accurately cover these attacks on people’s rights.
Salon’s Amanda Marcotte highlighted the disparity between how Republicans actually feel about marriage equality and how the press insists on presenting that information to the public.
From Marcotte’s piece, which is worth reading in full:
"House passes bill to codify marriage equality with large bipartisan support," claimed a Axios headline. "House passes measure that would codify same-sex marriage into law with bipartisan support," declared the headline at the Washington Post.
"47 House Republicans vote to write same-sex marriage into law," Politico declared, failing both to give the 100% of Democrats who voted for it credit and ignoring the 78% of Republicans who oppose same-sex marriage rights.
The CBS headline highlighted the 47 Republicans who voted for the bill over the 164 who voted no or refused to show up. Even the BBC, which is usually better than this, played along with "Republicans help pass House gay marriage bill."
The emphasis on how many Republicans support marriage equality (again, please keep in mind just how extremely limited this bill actually is and how states would still be able to refuse to issue marriage licenses to same-sex couples in the event that Obergefell is overturned) distorts how radically anti-LGBTQ Republicans actually are.
Here’s another way to put that in perspective:
In 2019, I wrote a piece at Media Matters (one of my favorite Media Matters pieces) about the complete and total failure of mainstream media outlets to inform the public about how wildly anti-LGBTQ Donald Trump was. Journalists lined up to pat him on the back for using LGBTQ people to get his base fired up and raging against Muslims.
On June 14, 2016, Trump tweeted, “Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.” The tweet was one of several empty platitudes Trump offered to LGBTQ Americans following the mass shooting at the Pulse nightclub in Orlando, FL, and at first glance, it might look like a sign of support. Upon closer reading, it’s clear that when he said “fight for you,” he wasn’t referring to fighting for LGBTQ civil rights at home. Instead, Trump’s statement used the community as yet another justification for his anti-Muslim immigration proposals. In his first speech following the Pulse attack, Trump claimed that he was a “friend of women and the LGBT community” because unlike Clinton, he would not “allow radical Islamic terrorists to pour into our country,” saying “they enslave women, and murder gays.”
In response, ABC’s Jonathan Karl called Trump “the most pro-gay rights Republican presidential candidate that we have ever seen.” Politico’s Kyle Cheney framed the bizarre, uncomfortable speech following the Pulse nightclub massacre as evidence of a pro-LGBTQ position, writing that Trump brought a “welcoming tone toward LGBT Americans” and that “in Trump, pro-gay rights Republicans see a new hope.”
Trump won kudos again the following month during his speech at the Republican National Convention, when he said, “As your president, I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology.” Again, this wasn’t a promise to support LGBTQ rights, but a promise to physically “protect” LGBTQ people from what he considered a “hateful foreign ideology” -- Islam.
While in office, Trump and his administration spent four years working to strip rights from LGBTQ people, weaken legal protections from discrimination, and otherwise relegate them to being second-class citizens:
He installed an anti-LGBTQ activist (Roger Severino) to run Health and Human Services’ Civil Rights Office. While there, Severino would spearhead efforts to re-legalize discrimination against LGBTQ people and people seeking abortions.
Trump’s Department of Education announced that it would dismiss Title IX complaints filed by transgender students who were discriminated against in school, even though courts had repeatedly found that trans students were protected under Title IX.
Trump appointed far-right, anti-LGBTQ judges to courts around the country. One of his judicial nominees had called the existence of transgender children “Satan’s plan,” several others had a history of working for the anti-LGBTQ Alliance Defending Freedom, and others had helped craft North Carolina’s infamous HB2 bathroom bill.
I could go on and on and on. There are Trump supporters who will somehow argue that none of these things are anti-LGBTQ, but they are. Objectively speaking, these are all actions that made life more difficult for LGBTQ people. Despite this, journalists covered Trump in 2016 as though he was some sort of champion of LGBTQ rights even though he had repeatedly said what he would do if given power. I see a lot of similarities between how the press is covering a whopping 22% of Republicans in the House voting to codify federal acknowledgment of same-sex marriages and how it covered Trump’s anti-LGBTQ campaigns. They think that “Republicans come around on LGBTQ issues!” makes for a fun story, so they write it even if it’s flat-out false.
Meanwhile, Republicans around the country are relentlessly attacking LGBTQ rights, smearing LGBTQ people as “groomers,” etc. The press needs to do its job. Tell the people what is happening, not what you think will help Republicans the most in the midterms. You have one job: tell the truth. Now go do it.