Nine years ago last month, our client Edie Windsor won her long fight to have this country treat her marriage with her late wife, Thea Spyer, with the same respect and dignity as straight marriages. In her case, United States v. Windsor, the Supreme Court struck down section 3 of the Defense of Marriage Act, which deprived lesbian and gay couples of the intangible dignity and tangible benefits of marriage under federal law. During argument of the case at our nation's highest court, Justice Ruth Bader Ginsburg famously remarked that there are "two kinds of marriage, full marriage," and "skim-milk marriage." And Edie deserved a full marriage. Two years later, the Supreme Court, in Obergefell v. Hodges, recognized the constitutional right of gay people to marry nationwide under the Fourteenth Amendment, in a ruling authored by Justice Anthony Kennedy and joined by Ginsburg and three others. But if we've learned one thing this year, it is that no American should take any constitutional right for granted.
Last week, U.S. Rep. Jerry Nadler introduced the Respect for Marriage Act, which passed the House on Tuesday, with 47 Republicans voting in favor. The bill is now before the Senate, sponsored by Sen. Dianne Feinstein and cosponsored by Sens. Tammy Baldwin, Susan Collins, and Rob Portman (the latter being a Republican), and passage there will require at least 10 Republican votes. The proposed legislation would repeal section 2 of DOMA by prohibiting states from denying full faith and credit to same-sex marriages in other states.
Some might say we don't need this law because Obergefell guaranteed marriage equality in all 50 states. But as recent news has made clear, the court has dramatically shifted since 2015, and rights that were once considered firmly rooted in precedent are suddenly not so rooted at all. As Professor Leah Litman put in her testimony before Congress this week, the recent decision to overturn Roe v. Wade "showcase[s] a selective attention to precedent, to history, [and] to facts." And although there are legal commentators who have suggested that it is "hysterical" or hyperbolic that the Dobbs ruling could serve as a road map for the demise of other substantial rights, including marriage equality -- those commentators have been widely off in their predictions before and may likely be off again.
In fact, we don't need to read too far into the tea leaves to see where the Court may be headed. Although Justice Samuel Alito's opinion in Dobbs paid lip service to the notion that the decision concerned only the right to abortion and "no other right," the other 78 pages of his opinion suggest otherwise. The fundamental premise of Justice Alito's Dobbs opinion is that the Fourteenth Amendment to the Constitution, the clause that gives rise to the fundamental right to marry, does not protect a right to abortion because abortion is not "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." In both Windsor and Obergefell, Justice Alito ardently argued against a right to marriage based on this same premise, noting that "the right to same-sex marriage" is not part of "this Nation's history and tradition" and "is not among" the deeply rooted rights. So which Justice Alito should we believe? Justice Clarence Thomas has already called for a reconsideration of numerous fundamental rights in his concurrence, including explicitly recommending that the court revisit Obergefell.
If the issue of marriage equality were to make its way up to the Supreme Court soon and Obergefell were to be overturned, we would face a return to state laws that refuse to recognize otherwise legally valid marriages of same-sex couples from other states. A married couple on a road trip with their children from New York to California, for example, would lose legal recognition of their marriage by driving across many, if not most, of the states along the way. That is why Congress must pass the Respect for Marriage Act.
We would be remiss not to mention that almost 10 years ago, we opposed similar legislation. Specifically, after I argued Windsor but before the decision had been handed down by the Supreme Court, a small contingent in Congress wanted to introduce a similar bill. Then, legislation would not have advanced marriage equality but would have lent support to its opponents. During the Windsor oral argument, Chief Justice John Roberts implied that lesbian and gay Americans were so "politically powerful" that "political figures [were] falling over themselves to endorse [their] side of the case." We didn't want to give the Supreme Court the option to sit on the sidelines. And contrary to Chief Justice Roberts's suggestion, at that time, lesbian and gay Americans did not hold extensive political power and the legislation was certain to fail. In fact, when the legislation was introduced after the Windsor decision, it did not even make it out of committee -- in the House or the Senate.
It was the right thing to oppose the legislation then, but it is the right time now for it to pass. Not only has there been a sea change in public opinion on marriage equality, but there is a realistic opportunity for Congress to get the job done and safeguard this fundamental right. We cannot make the same mistake twice as we did with Roe and rely on the inconsistent statements of six individuals on the Supreme Court. I implore all the Republican senators currently on the sidelines to think hard -- do they really want all their married LGBT friends, family members, and colleagues to risk becoming "unmarried" simply by crossing state lines?
Roberta Kaplan and Julie Fink are attorneys who represented Edith Windsor in her historic, successful challenge to the Defense of Marriage Act before the Supreme Court.
Views expressed in The Advocate's opinion articles are those of the writers and do not necessarily represent the views of The Advocate or our parent company, Equal Pride.
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