This week, The Heritage Foundation released a list of frequently asked questions about the Democrats’ radical same-sex marriage bill, H.R. 8404. The former director of the HHS’s Civil Rights Division sets the record straight on what the sweeping law would actually do.
Q: Did the Supreme Court decision in Dobbs v. Jackson threaten same-sex marriage or the Obergefell decision?
A: No. The Supreme Court went out of its way to dispel this idea, which the court called an “unfounded fear.” The court said, “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Moreover, it explicitly addressed rights created by the court in cases “regarding contraception and same-sex relationships” and said they “are inherently different from the right to abortion” because abortion “uniquely” involves prenatal human life. The court added “it is hard to see how we could be clearer” on these points.
Q: Did Justice Thomas say elimination of same-sex marriage in law will follow after Dobbs?
A: No. Justice Thomas wrote in a solo concurrence that “the Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts … like … Obergefell v. Hodges.” Indeed, Justice Thomas explicitly agreed with the majority that “[n]othing in [the Court’s] opinion should be understood to cast doubts on precedents that do not concern abortion.” Thomas merely repeated what he had said for decades in separate concurrences or dissents, namely, that the court’s doctrine of “substantive due process” should be abandoned as a means of establishing rights under the Constitution, and litigants should rely on other constitutional provisions when pursuing rights claims.
Q: Did any other justice in the majority write on the issue of same-sex marriage?
A: Yes. Justice Kavanaugh also wrote separately to “emphasize,” as Justice Thomas did, that the Dobbs decision “does not mean the overruling of [Obergefell and other] precedents, and does not threaten or cast doubt on those precedents.”
Q: Did anything in the Dobbs decision threaten Loving v. Virginia (1967) which struck down bans on interracial marriage?
A: No. Dobbs dealt with applying the constitutional doctrine of substantive due process while Loving was primarily decided on Equal Protection grounds, with Due Process as a fall back. This makes the idea that Loving may someday be overturned because of anything said in Dobbs beyond outlandish.
Q: Is there a need to “codify” Obergefell?
A: No. Every state with laws that defined marriage as the union of one man and one woman have amended their policies to comply with Obergefell and now recognize same-sex marriage as fully equivalent in law. Specifically, same-sex couples cannot be excluded from benefits of marriage by government actors solely because of same-sex status. If Obergefell is codified, absolutely nothing would change in terms of policies, benefits, and substantive rights for same-sex couples currently in civil marriages.
https://washingtonstand.com/commentary/13-faqs-on-the-respect-for-marriage-act