Same-sex marriage vote has feel of a Hallmark card and the value of one
Same-sex marriage vote has feel of a Hallmark card and the value of one
Sen. Marco Rubio was right. The Respect for Marriage Act is a "stupid waste of time." Lawmakers right to dispense with the measure quickly to move on to other things.
Summary: The U.S. Senate, in the perfect example of a “political-advocacy complex,” voted to preserve same-sex marriage against a non-existent threat based on unfounded fears and the left’s desire to find shared oppression after the loss of abortion rights.
When I was a reporter for one of the nation’s leading LGBT newspapers, I had the fantastic opportunity to have a front-row seat to milestone events marking the progress of gay rights, including the U.S. Supreme Court’s decision in 2015 in favor of same-sex marriage nationwide. I can tell you the vote in the U.S. Senate to advance legislation seeking to codify that ruling, otherwise known as the Respect for Marriage Act, wouldn’t even come close to being one of those milestones.
There’s absolutely no reason to have a vote on the bill other than to virtue signal over a feel-good measure. Same-sex marriage is the law of the land. There’s no clear and present danger to reversing that. No state legislature is advancing any measure to reverse the decision, or for that matter even holding a hearing on the issue. Not only is no litigation pending before the U.S. Supreme Court that would seek to reverse the Obergefell decision, no state has litigation pending anywhere that would seek to challenge the ruling or even chip away at it. The Senate may as well have had a vote to legalize sunshine.
The proponents of the Respect for Marriage Act, in fact, are preying on the public’s ignorance of their own system of government, drumming up fears same-sex marriage is in danger to make the case lawmakers should act (and win re-election) based on a non-existent threat against a civil rights milestone.
Same-sex marriage once was a polarizing issue in the not-too-distant past and largely unpopular in the American public. That’s why Republicans in Congress during the era of George W. Bush sought to stymie Democrats by holding multiple votes on measures that would have banned or limited marriage for gay couples, such as the Federal Marriage Amendment.
That’s no longer the case. Now polls show a record high of 71 percent of the American public supports same-sex marriage, including a majority of Republicans. The overwhelming popularity of marriage rights for gay couples is exactly why the Senate was able to approve same-sex marriage yesterday on a bipartisan basis during the cloture vote. At the same time, the tremendous support the issue enjoys just goes to show lawmakers are acting on a protective measure for which there’s no political willpower to threaten the status quo.
For champions of the Respect for Marriage Act, the stated reason to approve the legislation is a concurring opinion written by U.S. Associate Justice Clarence Thomas in the decision earlier this year overturning Roe v. Wade. In the legal essay, Thomas takes note the Dobbs repudiates the legal concept of substantive due process and names three decisions — Griswold, Lawrence and Obergefell — that should be revised under the new standard.
But that’s all it was: A concurring decision, not the actual legally binding opinion. U.S. Justice Samuel Alito, in the majority decision, wrote emphatically many times the decision was limited to abortion, citing the nature of the procedure in the taking of fetal life. No other justice even deigned to sign Thomas’ concurring opinion.
Thomas. who has been on the Supreme Court longer than any other sitting justice, has a propensity to write concurrences and dissents to decisions that are certainly outside the mainstream, which is why he has a reputation for being so far on the right. In fact, the Dobbs concurrence wasn’t the first time he called for the Supreme Court to revisit the Obergfell decision. But generally speaking, Thomas is alone in making these pronouncements and the rest of the court stays from him, even under its new conservative majority.
The idea same-sex marriage was in danger was palpable even before the Dobbs decision came down based on the public perception abortion rights were somehow linked legally to marriage rights. That’s not true. Although both Obergefell and Roe were based on the Fourteenth Amendment, the decision for same-sex marriage was based on the fundamental right to marry as opposed to a right to privacy. The Obergefell ruling never once cites the Roe decision as precedent in text of the decision.
The distincton between the two cases, however, didn’t stop the left from hyperventilating over the dangers to same-sex marriage as the U.S. Supreme Court head arguments in the Dobbs case. Any number of news stories, including one I wrote for my former publication, highlighted the fears marriage rights would somehow be reversed upon a Supreme Court’s decision overturning Roe v. Wade.
I think there was a few reasons for that perception. In addition to ignorance of the governmental process, same-sex marriage and abortion are linked in people’s minds because they both relate to sexual autonomy. Additionally, we were in the midst of the mid-term election, and ginning up the idea a concept as popular as same-sex marriage was in danger is a good way to mobilize voters to head to the polls to vote Democrat.
Most importantly, in my view, is the very nature of the left. A fundamental aspect of the progressive movement is restitution for constant oppression by the majority on a more virtuous and downtrodden minority population. The political left wants same-sex marriage to be in danger out of a deep-seated need for commonality with other marginalized groups under that shared oppression.
One another thing I can’t understate is what I would call the “political-advocacy” complex, which is a concept based on the military-industrial complex President Eisenhower warned us about more than 60 years ago upon leaving office. Basically, politicians need to act on measures promoted by advocacy groups to win their support, and advocacy groups need government to act on the measure they support to demonstrate their usefulness. It’s a reciprocity that’s effective when there’s an actual problem that needs to be rectify, but when that problem goes away, serves more to justify continued livelihoods in a profession that should be otherwise be discontinued.
The issue of same-sex marriage was resolved seven years ago, but lawmakers and advocacy groups are able to justify their raison d’être by holding a successful vote on the issue now. Keep in mind the marquee issue for these advocacy and politicians was the Equality Act, which President Biden once said he'd sign within his first 100 days in office. But the legislation is dead in water after being twisted over concerns — some justified, some not — over gender ideology. The vote on the Respect for Marriage Act amid that failure serves to show these politicians and advocacy groups are still good for something.
The Respect for Marriage Act wouldn’t even accomplish what the advocacy and politicians do what they say it would do: Codify same-sex marriage. There’s a lot of constitutional issues that would hamper Congress passing legislation that would outright require to legalize same-sex marriage, which has traditionally been a state issue. Instead, the legislation would simply repeal the now defunct Defense of Marriage Act to require federal recognition of same-sex marriages (something already in existence thanks to the U.S. Supreme Court’s ruling in Windsor case in 2013) and require states to recognize same-sex marriages performed elsewhere (something also in existence under the Full Faith & Credit Clause of the U.S. Constitution).
In essence, what the Respect for Marriage Act would do for same-sex marriage — in the implausible event the Supreme Court were to reverse marriage rights for gay couples — is take the country to a place not unlike where abortion is now after the Dobbs decision. Just as the Dobbs decision allows states to make their own decisions on abortion, it forbids them from penalizing residents going to other states for the procedure. Under the Respect for Marriage Act, states could decide whether or not they would allow same-sex couples to wed, but would be powerless what other states do and have to comply if they residents obtain a same-sex marriage performed elsewhere.
Sen. Marco Rubio, when the Respect for Marriage Act was first advancing through Congress, took heat for saying he would be voting “no” on the legislation because it would be a “stupid waste time.” As you see from this essay, I would generally agree with his reasoning. I don’t think Congress should be devoting any time for a vote in the first place.
But at the end of the day, I think I would come to the opposite conclusion. If I were legislator, I would have to say I would probably vote “yes” on the Respect for Marriage Act. It’s a stupid waste of time, so vote in favor of the bill to let it serve its limited purpose as feel-good measure. That should get it off the Senate agenda as quickly as possible so lawmakers can move on to more important things.