Obergefell’s lawyer discusses the fate of marriage equality after Roe

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Faced with the likely possibility that the U.S. Supreme Court is poised to strip the constitutional right to marry from same-sex couples,” congressional Democrats this week reintroduced legislation aimed at forestalling the potential fallout from a reversal of court history 2015 Obergefell v. Hodges decision.

The Respect for Marriage Act passed through the U.S. House of Representatives on Tuesday with the support of a quarter of the Republican caucus totaling 47 members. A companion bill in the US Senate introduced by the US Sens. Tammy Baldwin (D-Wis.) and Dianne Feinstein (D-Calif.), with co-sponsors US Sens. Rob Portman (R-Ohio) and Susan Collins (R-Maine), now have a realistic chance of winning the approval of 10 Senate Republicans, which is needed to meet the 60-vote bipartisan majority threshold to break a filibuster.

The prospect of a floor vote on the bill has grown closer, possibly as early as next week with U.S. Sen. Ron Johnson (R-Wis.) pledging Thursday not to oppose the bill. law. Another sign of lukewarm support among Senate Republicans this week came from U.S. Sen. Thom Tillis (RN.C.), who said he would “probably” vote for the legislation, while U.S. Sen. Lisa Murkowski (R -Alaska) approval was more enthusiastic.

“Not only would I like to see Roe, Casey and Griswold on codified contraception,” the Alaska senator said, “but I also made my support clear … for same-sex marriage years ago.”

Last month, when the High Court overturned Roe v. Wade, Justice Clarence Thomas wrote in his concurring opinion that he saw a valid interest in reviewing other decisions where the court had set legal precedent with other constitutional privacy issues to include Obergefell.

Scrambling to protect reproductive rights after the Dobbs v. Jackson, congressional Democrats introduced an ambitious bill to codify abortion rights nationwide, which won just seven votes from House GOP members and was doomed to fail in the Senate. (despite Murkowski’s position on the matter.)

With the Respect for Marriage Act, Democrats took a more modest approach to mitigate some of the consequences of a ruling overturning marriage equality, betting its limited scope would win enough Senate Republicans to pass it. . Ahead of the 2022 midterm elections, Democrats also hope to demonstrate their commitment to protecting support for marriage equality that reached 71% of Americans according to a Gallup poll in June.

In an emailed statement to the Los Angeles Blade, U.S. Representative Barbara Lee (D-California) explained how congressional Democrats are preparing to fight the Supreme Court’s looming threat to strip couples’ rights of same gender:

“As we saw with the Dobbs decision, this far-right, Republican-appointed tribunal has clearly demonstrated that it will not hesitate to undermine the will of the people and revoke long-established constitutional protections. If they reverse 50 years of abortion rights with Roe, they will reverse a decade of marriage equality with Obergefell. Make no mistake: Democrats are the party that fights for basic rights and bodily autonomy, and we proved it this week with the passage of the Respect for Marriage Act.

Effectively overriding the Clinton-era Marriage Defense Act, the legislation would recognize same-sex marriage at the federal level, adding additional protections to guard against the possibility of the constitutional right to marriage equality being revoked by a Justice decision.

If the Supreme Court issues a ruling allowing states to ban same-sex marriage, civil rights attorney Dan Canon, who represented the Kentucky plaintiffs in the Obergefell case, told the Blade that the Respect for Marriage Act would require states to recognize gay and lesbian marriages. couples executed in places where they are legal. At least, that is, in states where officials would follow federal law.

“Unless and until the federal courts declare that it is a violation of the free exercise rights of a government actor to have to recognize a marriage – which is a radical and crazy legal position, but still one possible outcome – weddings in places with half-sane judges and/or executive branch officials should be fine,” Canon said.

“The RFMA (Respect for Marriage Act) gives the attorney general and private citizens a civil enforcement mechanism,” Canon said, but state government employees can still refuse to recognize legal marriages of like-minded couples. gender, and conservative courts could decide their religion. objections and free exercise rights supersede laws such as the Respect for Marriage Act.

Additionally, Canon said that despite the lack of any solid legal case against it, one can imagine that a case directly challenging the Honoring Marriage Act could be blessed by conservative federal district judges and from the circuit courts, eventually reaching the High Court whose conservative majority could rule, for example, that “this application of RFMA violates the free practice rights of the Registrar” or anyone challenging the law.

Such an outcome would spell “utter chaos,” Canon said, questioning not just whether a state — but also whether a county or city — will recognize same-sex marriages. Alternatively, a governor, without objection from conservative federal courts, could issue an executive order barring officials from recognizing legal same-sex marriages, and the Supreme Court could decline to rule on the matter, Canon said.

A case challenging same-sex marriage could chart a similar course

Seven years ago, a Kentucky county clerk named Kim Davis denied marriage licenses to same-sex couples in violation of a federal court order in accordance with the Supreme Court’s ruling in the Obergefell case. When sued, Canon represented parties in the high-profile litigation, which the Supreme Court declined to hear on appeal.

Thomas and Judge Samuel Alito objected to the court’s refusal to review Davis’ case, releasing statements in which they called her a “victim”. Canon said Obergefell’s challenges are likely to center on the same legal issue at issue: does the free exercise of religion trump the equality of marriage.

And it’s not just the Supreme Court, with its 6-3 conservative supermajority, that would be more receptive to such arguments than it would have been in 2015, Canon said.

“When we pleaded this [Kim Davis] case, we were pretty sure that no American court would say that Davis’ right to impose his religion on his constituents was somehow superior to anyone’s right to a marriage license,” he said. . “Now? I’m not so sure.”

GOP lawmakers and the conservative legal movement have moved so far to the right in recent years. Canon said he expects Congressional Republicans, if they get a majority in both houses, to try to ban marriage equality in all 50 states, while the Supreme Court can , take a case that challenges Obergefell, no matter how fragile his position.

“It’s hard to imagine a sufficient ‘injury’ to confer status in a way that would present a halfway decent case for the Court to reconsider Obergefell based on an interpretation of the 14th Amendment,” Canon said. . Yet the Conservative majority justices are “promoting an ideological agenda” and “none of this makes sense by the playbook we’re used to.”

A successful case would most likely start with “a Christian nationalist attorney general or governor saying, ‘We won’t recognize marriage equality,'” and the Supreme Court could rule that their denial is legal under the First Amendment, Canon said. .

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