Learning Curves: The Supreme Court Successfully Teaches Democrats A Crucial Lesson

This is progress.

The lesson is: Legislate and pass Constitutional laws the public supports, and don’t depend on courts to do your job for you.

The House of Representatives, with Democrats being joined by 47 Republicans, voted yesterday to pass the Respect for Marriage Act, 267-157. The bill would codify same-sex marriage into federal law.

Good. That’s the way it’s supposed to be done, and that’s what should have been done with abortion as well, had not the activist Supreme Court of 1973 unethically contrived an abortion right that didn’t exist. Democrats frequently had the votes and White House support to codify abortion in the years between 1973 and 2022, but preferred to use “choice” as a wedge issue to hold on to the feminist vote. Good plan!

Of course, the vote yesterday is being framed in such a way that the public may never comprehend the good reasons to pass laws the old fashioned way rather than wait for a deliberately undemocratic and non-partisan referee—SCOTUS—to rule by edict. Speaker of the House Nancy Pelosi blamed her Democrats having to step up and legislate on a single Justice’s outlying concurrence in Dobbs. “Make no mistake, while his legal reasoning is twisted, and unsound, it is crucial that we take Justice Thomas and the extremist movement behind him at their word. This is what they intend to do,”she said.

I don’t think there is a chance in the world that same-sex marriage will be overturned. One thing about reversing Roe: it didn’t magically undo millions of abortions so there were suddenly all of these unaborted kids running around. Only Thomas (and maybe Justice Alito) are so doctrinaire that they would advocate a ruling that would either undo existing same sex marriages or create the unstable situation where some gay Americans are married with all the advantages of marriage while others are blocked from marriage. Furthermore, the argument for same sex marriages does not rely on the unenumerated right of privacy alone, but also Equal Protection, which was the basis on which several state courts ruled that restrictions on same sex marriages were impermissible.

The speculation is that the new bill will fail in the Senate because of a filibuster by Republicans. Republicans would be wise (and ethical) not to use the filibuster on this issue, but any sentence that begins with “Republicans would be wise” is flirting with fantasy.

28 thoughts on “Learning Curves: The Supreme Court Successfully Teaches Democrats A Crucial Lesson

        • I have no problem with Republicans arguing their points on this issue and voting their conscience; however, I think this issue should NOT be pushed as a wedge issue, it could and likely will wedge in ways they cannot predict within the Republican Party. Plus, making this a wedge issue slams the door on any possibility of political aisle crossing within the gay community.

          This is not a hill to die on kind of issue, in fact I don’t think it’s not in the top hundred of viable political issues.

          Choices have consequences.

    • To be devil’s advocate, why does the government need to be involved at all? Why does any type of marriage need to be “legal”? The only argument I’ve heard is that healthy marriages help stabilize society and should be promoted, but the government undermines that in so many ways – easy divorce, rewarding single mothers in the welfare system, etc.

      The libertarian streak in me says the benefits like taxes, joint property, inheritance, etc, could be done through some sort of legal arrangement that any 2 people could enter in. Or just remove those benefits all together.

      I honestly haven’t thought through the repercussions of this plan, but just wanted to have the discussion.

      • The Shadow wrote, “The libertarian streak in me says the benefits like taxes, joint property, inheritance, etc, could be done through some sort of legal arrangement that any 2 people could enter in.”

        That’s a civil contract and I raise that point in my blog post about amending the constitution. Marriage is literally another form of civil contract between two people.

      • Loving v. Virginia found that marriage law is discriminatory to pairs of individuals basedon their race, Obergefell v. Hodges struck it down based on genders of the participants. It still remains discriminatory denying equal protection to those who choose not to marry–among many other arrangements.

        Perhaps the best solution is an expansive interpretation of the First Amendment that determines marriage is an “establishment of religion” and outside the bounds of legislative scope.

        • The trouble with this interpretation is that there are many non religious people who get married so saying that marriage is an “establishment of religion” is incorrect.

        • These are implausible solutions to a non-existent problem. You will not get the millions of straight couples in this country to give up their thousand-and-change federal marriage benefits just because a less-vocal-than-ever minority is uncomfortable with gay couples marrying. “Just get the government out of marriage’ is thus completely impractical and serves as a poot excuse to not support marriage equality.

          • What I and possibly WallPhone are suggesting is expanding those benefits. Why can’t it be two cohabiting single friends? Or a romantically connected couple who just don’t want to get married? Why can’t people have multiple of these arrangements? Why limit it to two people? Why the arbitrary distinction of “legally married”?

            • “Why can’t it be two cohabiting single friends? Or a romantically connected couple who just don’t want to get married?”

              They are free to get married to each other if they want those benefits. Or they can get civil unions.

              “Why can’t people have multiple of these arrangements? Why limit it to two people?”

              Because distributing marriage benefits between more than two people would be a legal nightmare. What if there’s a conflict involving, for instance, life-and-death decisions?

              “Why the arbitrary distinction of “legally married”?”

              That’s not arbitrary at all.

              • Why is distributing marriage benefits more difficult than distributing benefits when any other legal entity disintegrates?

                The “civil union” contract should have a section about distribution in the case of dissolution, same as any other contract.

  1. Besides the fact I have a queer daughter, marriage is something which is 1) entwined in the tax code, and 2) needs to be applicable across state lines. “Marriage equality” is also something that is more easily and broadly accepted by most Americans. Abortion is a different matter quite entirely.
    As for what will happen in the Senate WRT the “Respect for Marriage Act”, the Republicans would be quite stupid to want to die on this hill, but then it’s not stopped the more doctrinaire among them before.

          • All silliness aside, Susan Collins and LIsa Murkowski might be possibilities. Mitt Romney won’t, his base wouldn’t tolerate it. Pat Toomey is retiring and so has nothing to fear. Four other GOP senators are retiring, but I don’t think Richard Shelby of Alabama would vote for it. That still doesn’t get you to 10.

            • Portman’s onboard and co-sponsoring and I think you’re wrong about Romney’s base, Utah’s… interesting, I don’t know if you’ve been, Romney would be a no because he’s against it not because he doesn’t think he’s free to vote otherwise.

              And I don’t see a way to 10 either.

              • Portman’s son is gay, which led him to support gay marriage. No, never been to Utah, so far Wisconsin is as far west as I got. Portman is also one of the five retiring, so I already counted him. Still doesn’t net 10.

                • If I were a Republican Senator, I personally might be inclined to vote for it, since gay marriage has now been legal for seven years and the sky hasn’t fallen, plus upending the Obergefell decision would do more harm than good practically. However, I would also have to consider if doing so would be a net positive or a net negative for me with the party or with the voters. If I represented NJ, probably yes, since this is a realtively liberal state. If I represented South Carolina, then maybe I might have to ah, revive the “tide.”

  2. They want “reproductive rights” protected when it stops reproduction. They want to respect marriage when they propose something that is not marriage. “Save the children laws have resulted in children being abused by non anthropological ideologies.

  3. Leaving the merits of the RFMA aside, does Congress have the Constitutional authority to enact legislation like this? Is it linked to or in furtherance of an enumerated power or is Congress’s power unlimited?

  4. Jack,

    Shouldn’t that mean that there would likely be a court challenge and that, if this is the basis of the State(s) bringing suit & getting it to SCOTUS, then SCOTUS would have to resolve a conflict between 2 of its own decisions? (I’m thinking of Obergefell butting heads with Dobbs over the Federalism issue; I’m just a curious layman who enjoys trying to follow the logic of SCOTUS decisions—sometimes a formidable task.)

    MB

  5. I think the gay marriage issue is one on which many Republicans rely upon a small but vocal minority of the so-called “religious right” and misread the more common sentiment that I hear: we don’t care. Most Christians I know personally don’t care what kind of “civil unions” that the government sanctions between people so long as they stay in their lane and don’t force the Church to perform or endorse them. We know what marriage is, according to the Bible, and the government can’t change that. Sure, they can call it marriage but, as Lincoln famously observed, calling something what it isn’t doesn’t make it so (the Woke Left to the contrary notwithstanding).
    Of course, I don’t believe that the federal government has the Constitutional authority to legislate on marriage at all, but that also applies to myriad other areas where they have legislated and will continue to legislate (both from Congress and through the ever-more-powerful rule-making administrative state) so long as the U.S. endures in its “Empire phase,” in other words, for the foreseeable future. Thank goodness we have a Supreme Court that will, even occasionally, remind Congress and the President that there are indeed limits to Federal power. Would that it was more frequent!

    • I don’t see how they can misread it. Polls are crap, but when they are as overwhelming as they are on this topic, the GOP should know it’s pissing in the wind. Oberkfell was an inexcusably weak decision—Kennedy was a poor justice—but if the government is going to have benefits and consequences of marriage, it should be obvious that it can’t pick and choose who has access to the status. Moreover, most Americans now know or work with married gay couples, many of whom have children, and they can see that the families threaten nobody and harm nobody. It’s a loser to oppose same sex marriage now, and the GOP has far more important duties than tilting at windmills while losing votes.

      Stupid party. A perfect example.

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