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Thoughts on the Respect For Marriage Act.

By Hubert Plummer posted 11-15-2022 10:21 PM


In 2015, the US Supreme Court issued its decision in Obergefell v Hodges, 576 U.S. 644 (2015)[i] which held that the states must issue marriage licenses to same sex couples.  It was a 5-4 decision, Kennedy, Ginsburg, Breyer, Sotomayor and Kagan were the majority and the Dissent came from Roberts, Scalia, Alito and Thomas.  The decision was based on the Fourteenth Amendment Due Process clause and Equal Protection Clause.

Since that time, Justice Thomas in particular has expressed his opinion that the decision was wrong and he thinks the Court should revisit the issue.[ii] He also wants to revisit rights to contraception.  In his concurring opinion in the Dobbs case that overturned Roe v Wade, he said the Justices, “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”[iii]

With Dobbs, we’ve seen that this Court has no hesitation in overturning a 50-year precedent of a civil right in Roe.  There is little doubt in most people’s minds that they would easily overturn the rights to access to contraception and same sex relationships and same sex marriage.

The Respect for Marriage Act is now before the Senate.[iv]  The House passed the bill in July and now Senate Majority Leader Chuck Schumer has said he will bring the Act to the floor of the Senate for a vote on Wednesday November 16, 2022.[v]

This act has bi-partisan support, but it is leaving many with a sour taste in the mouths.  It is by no means everything that same sex marriage supporters hoped for.  It is a compromise bill.  It doesn’t codify Obergefell like many hoped.  It requires the Federal Government to recognize marriages that are legal in the jurisdictions they were created in and it requires that all States must recognize same sex marriage from states that allow them.[vi]

This is not codifying Obergefell.  It is a disappointment to many, but it is the best we are going to get for now.  It doesn’t make sense to wait for a better bill to come along.  Get this one on the books and we can keep working for more. No one feels comfortable that Obergefell would survive the Supreme Court revisiting it.







The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.