The Latest Shiny Object
Efforts to distract voters away from inflation, IRS expansion, student loan bailouts, crime, the border and other disasters continue with the latest shiny object on same-sex marriage
Republicans are often accused of initiating war on cultural issues and “taking away rights.” But it’s congressional Democrats who are using issues like abortion and same-sex marriage for purely political purposes and, in effect, attacking religious liberty.
The latest is an effort by Senate Democratic Majority Leader Charles Schumer (D-NY) to bring legislation to the floor next week to codify the legality of same-sex marriage between two people. While I haven’t seen the final legislation, it appears based around S.4556, the so-called “Respect for Marriage Act.”
Wow. We’ve come a long way from the “Defense of Marriage Act,” signed into law by President Bill Clinton in 1996 after being overwhelmingly adopted by Congress, and the 1993 “Religious Freedom Restoration Act.” At least much of the latter remains the law for now.
The latest Senate bill appears to change precisely nothing. It has no practical effect. Why? Because of the Supreme Court’s Obergefell decision in 2015 found a “right” to same-sex marriage under the Constitution’s 14th Amendment. Marriage, like abortion, is found nowhere explicitly or otherwise in the Constitution.
Oh, there is one thing the Senate’s gambit might change - eliminating religious freedoms and protections. If that’s not addressed, the bill will not survive a filibuster, nor should it. And I wonder if Senate Democrats would still vote for it if religious liberty safeguards were included? This will be interesting.
But we’re not here to relitigate Obergefell. This is one of the phony issues arising out of the Court’s Dobbs decision that overturned Roe v. Wade this Spring is the accusation that conservatives are now out to overturn other decisions like Obergefell and others involving access to contraceptives and even interracial marriages. Since the court found no right to an abortion, some argue that the “right-wing” court will follow up to reverse those other decisions - taking away rights, they scream - and turn those matters back to the states.
That, despite the fact the majority opinion in the Dobbs decisions explicitly said it did not effect other issues. Only one Justice, Clarence Thomas, raised the issue of “substantive due process” and the need to address those and other prior decisions. In a separate concurring opinion, he believes the court erred on those matters and should be left to the states, like Dobbs. He appears alone in that perspective, at least on the Supreme Court.
That’s not going to happen. There is no such legal challenge anywhere in the system that would overturn any of those prior decisions, including Obergefell, Griswold, or Loving. And if there were, they would lose 8-1, maybe 7-2 with this court. And for those who scream that “we must protect same-sex marriage by codifying it into law,” just remember that it is easier to change laws than Supreme Court decisions. It’s a specious argument.
The new Senate legislation has everything to do with politics. But it is potentially dangerous for people with strongly held religious views to be forced to accommodate things like same-sex marriages or the distribution of contraception (see: Little Sisters of the Poor). By the way, it was Pennsylvania’s Attorney General and current Democratic nominee for Governor, Josh Shapiro, who prosecuted that case against these Catholic nuns. It is bizarre that Shapiro could be elected Governor in a Commonwealth largely established and settled by Quakers and other religious sects on a promise of religious freedom, a “Holy Experiment,” according to founder William Penn.
My friend Hugh Hewitt writes for the Washington Post, one of just three conservative writers (the others being another friend, Marc Thiessen and Henry Olson) who grace their otherwise hard-left, Trump Derangement Syndrome infected editorial pages. A Constitutional lawyer and professor at Chapman University’s School of Law, along with being an astute political observer, he outlines what’s happening here.
I disagree with him on how I would vote if I were a Senator. I’d vote no if only in protest of the Senate wasting its time and being used to score political points. I share most of his post here. You can read the rest here.
Hugh Hewitt:
A bill purporting to codify same-sex and interracial marriage law is coming to the Senate floor. Majority Leader Charles E. Schumer (D-N.Y.) has promised a vote on it. Sens. Susan Collins (R-Maine) and Tammy Baldwin (D-Wis.) have argued in The Post for the bill. Sens. Rob Portman (R-Ohio) and Amy Klobuchar (D-Minn.), appearing on Fox News’s “Special Report with Bret Baier” this week, also pledged their bipartisan efforts to get the bill passed.
I would probably vote for this bill were I a member of the U.S. Senate — the exact language on religious liberty will be crucial — even though I argued long and hard that the law of marriage belonged to state legislatures. Since the Supreme Court ruled in Obergefell v. Hodges in 2015, tens of thousands of Americans entered into same-sex marriages, just as huge numbers of Americans have entered into multiracial marriages. Stare decisis operates with particular weight on cases the decisions of which led people to rely on the court’s holdings in significant ways. Stare decisis also looks to whether the court’s opinion has “settled the issue” in the country abroad.
The issue of limits on abortion was never “settled” in any way that the ordinary use of the term means. The cases kept coming, year after year. State legislatures kept passing new laws attempting to regulate the procedure, sometimes successfully in front of the Supreme Court, sometimes not. Roe and Casey weren’t even remotely settled or persuasive precedents because the active legal and legislative debate over abortion never ended.
By contrast, Obergefell and 1967′s Loving v. Virginia, which found constitutional grounds for interracial marriage, decisively and conclusively ended the debates on same-sex marriage and interracial marriages. Some people still object, of course. Some state legislators may yet introduce attempts to reverse those precedents. But it isn’t going to work because, unlike Roe and Casey, the questions are settled, in the courts and around the country.
Why then is Schumer bringing the issue to the Senate floor in a rush? Obviously, as Sen. Ron Johnson (R-Wis.) told me Thursday, to distract from the issues dominating the midterm elections in 2022.
Democrats are in danger of losing control of Congress. They are very likely to lose the House to the GOP. There’s a good chance the Senate will revert to the Republican control if the past is any guide. The GOP, as the real campaign season began, is pleased with the issue set dominating voters’ minds: affordability of everything from groceries to gas, soaring crime and an “open border.” Democrats have set their hopes on Dobbs energizing their base, and perhaps it has.
But President Biden’s ham handed attacks on millions of Donald Trump voters as “semi-fascists” are already being seen as an unforced error if not political malpractice. Biden’s speech last week in Philadelphia, with the harsh red lighting and the ill-used Marines in the shadows, has become the occasion for second-guessing from both right and left about the wisdom of attacking Republican voters two months before the election. The student loan bailout backfired. Interest rates, meanwhile, and the cost of nearly everything just keep rising.
So, Schumer has launched another attempt at a political rescue of Democrats from the Senate, this time with consideration of the same-sex marriage bill. If he holds his 50-vote caucus and the four Republican senators who support it, he still needs six more. His calculation is that even if he cannot find the 60 votes he needs, it is always better for his party’s chances in November if it is caught trying to pass the measure.
Johnson had a different perspective. He calls consideration of the bill the politics of purposeful division. The left, he said, “simply, they cannot let any wound remain healed. ”
“They’ve got to pick the scab,” he told me, “and they’ve got to continue to push these wedge issues.”
Well said.