Democrats are acting like true liberals
But need to prioritize accordingly
May 2012: President Obama, who in his 2008 Presidential campaign supported civil unions, changed course and publicly advocated for gay marriage in the leadup to the 2012 election. At the time of his announcement, thirty states had legal bans on gay marriage. His public posture followed his Justice Department’s February 2011 decision to no longer defend the 1996 Defense of Marriage Act, signed into law by President Clinton which defined marriage as between a man and a woman. And though Obama’s White House claimed to want to codify same-sex marriage rights in a Constitutional Amendment, Congress and the State legislatures passed no such Amendment to be signed by the President.
June 2015: The United States Supreme Court ruled 5-4 that same-sex couples can marry. Justice Kennedy, the conservative justice who broke the judicial tie and has since retired from the bench, wrote in the majority opinion:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were.
Justice Scalia, a highly respected constitutional originalist among conservatives, wrote in the dissenting opinion that the ruling is a "threat to American democracy." Justice Roberts, the current Chief Justice, wrote of the decision:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Earlier this week, the House of Representatives passed 267-157 (with 47 Republication Yea votes) the Respect for Marriage Act to codify:
No person acting under color of State law may deny—
full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals
Now that the bill will be passed on to the Senate, CNN reached out to all 50 Republican Senators asking how they would vote on the upcoming legislation. Four are likely to vote Yea, eight are a firm Nay, sixteen are undecided and twenty-two did not respond to their inquiry.
Of those who indicated they are undecided:
Mitch McConnell, Senate Minority Leader representing Kentucky - "I'm gonna delay announcing anything on that issue until we see what the majority leader wants to put on the floor."
Mitt Romney, potential 2024 Presidential nominee representing Utah said [the bill] "is not something I've given consideration to at this stage" since "I don't see the law changing."
John Thune, Senate Minority Whip representing South Dakota, will take a ‘hard look’ at the bill but said, "As you saw there was pretty good bipartisan support in the House yesterday and I expect there'd probably be the same thing you'd see in the Senate."
Some of the reluctance to publicly declare their stance is the upcoming mid-term elections. Republicans, like Senator Thune, contend Democrats are looking for a ‘win’ prior to the mid-terms to distract voters from rising inflation and growing economic issues. And while that opinion certainly has elements of truth, every Republican legislator knows full well their ignoble actions to thwart President Obama’s Supreme Court nomination of Judge Merrick Garland in March 2016 (10 months prior to Obama leaving office) and rubber stamping President Trump’s 3 Supreme Court nominees was in no small part to enshrine conservative values via the highest court in the land. Contradictory to Senator Thune saying “The court made it very clear the precedent they were addressing in Dobbs didn’t affect any other precedents,” Supreme Court Justice Clarence Thomas did call into question in his Dobbs v. Jackson Women’s Health Organization’s opinion the constitutional validity of same-sex marriage and the right to use contraception.
To sway their public stance, Republicans could look to polls which indicate same-sex marriage has never been more popular - 71% of those polled believe marriages between same-sex couples should be recognized as legally valid and treated equally with traditional marriages. In the same poll, churchgoers acceptance of gay marriage has risen among those who attend nearly weekly/monthly to 70%. Among the general voting population, same-sex marriage has had majority support since at least the 2015 Supreme Court decision at which point public approval was just shy of 60%.
However, (at least) two issues will keep Republicans at bay. Beyond giving Democrats a mid-term ‘success’ story, in the same poll only 40% of churchgoers who attend weekly support gay marriage. And though the polling does not indicate what percentage of mid-term voters weekly churchgoers represent, it is likely a sizeable segment which Republicans in the Bible belt (and Utah) cannot ignore. According to FiveThirtyEight, Republicans are currently poised to win the House in 2022 and have a 50-50 shot of winning the Senate.
The other issue that could cause Republican Senators to vote against the Respect for Marriage Act is rooted in the principles of federalism and precedent, which have long been part of the bedrock of American jurisprudence. Simply put, what has been left to the States domain should remain in the States purview. My (admittedly limited) legal knowledge tells me that it is this specific issue which gave conservative Supreme Court Justice Antonin Scalia concern for the health of America’s constitutional democracy. And that issue should be debated openly, if that is indeed why many Republican Senators will vote Nay.
Yet as a student of American history, I am aware of how long social progress can take to come to fruition in the US and the measures needed to enact (near) permanent change. Abolition and women’s suffrage had to be codified in the Constitution as Amendments to ensure the nation as a whole would progress together. Child labor bans, a minimum wage and healthcare for the elderly and impoverished required federal laws. But let’s review women’s suffrage as that particular example may be the most salient in this moment given abortion, contraception and same-sex marriage all affect women.
Women’s suffrage movement began in Seneca Falls, NY in July 1848 when ~300 attendees (majority women) outlined what would become the direction for the women’s rights movement. A significant number of women in that movement fiercely supported abolition and black rights, partly to sway the only voting block in America (white men) to provide equal rights to women. That of course did not happen via the 13th, 14th or 15th Amendments passed in the 5 years after the Civil War. Though the movement started to break apart in the immediate aftermath, by 1878 a Constitutional Amendment was finally introduced in Congress. It took until May 1919 for the House of Representatives to pass the Amendment; the Senate quickly followed; but it took Tennessee to become the 36th State to ratify the Amendment for a woman’s right to vote to become the law of the land in August 1920. Women had to fight for their right to be treated equally for more than 70 years!
With significant public support, persistent media coverage in the wake of the Dobbs decision and the upcoming mid-terms to rally voter support, it would seem now is the optimal time for Democrats to prevent the Supreme Court from reversing prior legal decisions. Yet, according to Politico:
The Senate is set to go on a lengthy break in two weeks, however, and Democrats are trying to pass legislation that would pour money into the domestic microchip manufacturing industry, cut the prices on prescription drugs and admit Sweden and Finland into NATO. That leaves [Senate Majority Leader] Schumer with a tough decision on whether to wedge same-sex marriage into the schedule before the summer break.
To reiterate, the Senate is set to vote on bolstering our domestic computing industry which can impact our entire economy, determining NATO membership of nations that could further aggravate tensions with Russia and ensuring healthcare is not cost-prohibitive across the board WHILE attempting to codify civil rights. Damn. And this immediately follows Democrats suffering another setback on Build Back Better and currently attempting to stoke the public’s ire towards Trump conservatism with the January 6th Commission hearings.
Objectively considering the issues before the Senate, it’s difficult to say which is the most important but fortunately/unfortunately ‘wedge’ issues have greater public focus prior to an election, not after. Realistically, the Senate has been deliberating on domestic microchip manufacturing since at least February of this year, prescription drug prices has been kicked down the road for years and the Senate (I would think) would have an emergency session during their legislative break if the war in Ukraine could expand to other parts of Europe necessitating a speedy vote on Sweden and Finland joining NATO.
I agree that Democrats are cashing in on the culture war by passing laws on same-sex marriage and protecting the right to contraceptives without State government restriction. But for Congress to not endlessly debate culture war issues so they can prioritize the economy, foreign policy and climate change, the Senate should vote on these laws now.