If anyone was waiting for the national furor over the “extremist” Supreme Court ruling to die down, you may want to reset your expectations. In fact, not only is the debate not fading away, it’s spreading into other areas having nothing to do with pregnancy. This week, the House is taking up a bill known as the Respect for Marriage Act, which would supposedly create some sort of federal protection for marriage, regardless of the genders or other demographic profiles of the participants in the ceremony. All of this action is clearly a rushed response by critics of the court who insist they must “do something” to prevent the court (and Republicans) from overturning other bits of supposedly settled law. Their excuse is based on Associate Justice Clarence Thomas’ concurrence where he suggested that other previous decisions should be similarly set aside, potentially impacting subjects like gay marriage or interracial marriage. (We can ignore the hilarious idea of Clarence Thomas wanting to criminalize interracial marriage for the moment.) So is this the next big battle we’ll be witnessing? (ABC News)
The House is set to vote on a bill Tuesday that would codify same-sex marriage into federal law — the move coming in the wake of the Supreme Court’s decision to overturn Roe v. Wade last month, after which Justice Clarence Thomas announced the court should “reconsider” its past rulings on rights to contraception access, same-sex relationships and same-sex marriage.
Thomas, in his concurrence to Dobbs v. Jackson Women’s Health Organization, the decision that struck down Roe v. Wade, wrote that the Supreme Court should reconsider decisions involving a constitutional right to privacy that guarantees fundamental rights — including same-sex marriage and access to contraception.
His opinion sparked alarm among activists and Democratic lawmakers.
This is just becoming exhausting, at least to me. I will first say that I do understand where Thomas is coming from. The federal government has passed all sorts of laws over the years sticking Washington’s nose into matters that should have been left in the control of the states despite never having been mentioned in the Constitution. Of course, if we eliminated all of those laws, there would be relatively few federal laws left on the books. (Not that I’m saying that would be a bad thing, but it simply seems unlikely to happen.)
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So why would this new bill put us back in the ring, fighting over gay marriage? Prior to the court’s decision in Obergefell v. Hodges, various states had any number of different marriage laws imposing restrictions based on various criteria. But just as the court did nothing to criminalize any medical procedures dealing with pregnancy this year, overturning Obergefell would not criminalize gay marriage. It would similarly hand the issue back to the states.
At that point, we’re left to wonder if there are still conservatives out there in the red states who would try to restrict gay and lesbian couples from marrying again. I suppose it’s possible, but I would be opposed to the idea just as I have been all along. Way back in 2013 I was writing about this topic and the proper position that those who regard themselves as small-government conservatives should naturally take. (Oh, dear Lord, has it really been that long?)
For me, the bottom line has never been a question of whether or not any particular marriage should be legal or illegal. The issue, at least as I see it, has always been whether or not the government at any level should assume for itself the power to demand a permission slip (in the form of a license) and levy a tax (even if you call it a fee) for any two consenting adults to hold a private ceremony in front of friends and family that impacts not one other human being in the country and causes no harm. That’s always seemed like a pretty easy call in my book. The answer should be no.
Way back before Obergefell, I offered what I thought was a much better solution to “the gay marriage problem” than legalizing or banning anything. Of course, nobody listened and they likely won’t do so this year, but it would work. We should strike the word “marriage” from the entire tax code. We should also repeal almost every law with the word marriage in it, though some restrictions ensuring the protection of children and others who are unable to provide informed consent from potential abuse would still be needed. If you do that, the gay marriage debate disappears, along with interracial marriage questions and pretty much anything else to do with marriage. If you want to get married you will have no trouble finding someone willing to perform the ceremony or host your reception, even if there are some vendors who may choose to refuse.
But, as I said, nobody wants to hear about an actual small-government solution to an issue like this when we could spend the next four years having a food fight over it. Again. And I’m getting a sinking feeling that we may be heading in just that direction.
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