January 2023 | Volume 14, Issue 6

Read the full article on CNBC.

According to the article, President Joe Biden recently signed the bipartisan Respect for Marriage Act, codifying into law protections for same-sex and interracial couples.

“The road to this moment has been long, but those who believe in equality and justice, you never gave up,” Biden said. “So many of you put your relationships on the line, your jobs on the line, your lives on the line, to fight for the law I’m about to sign. For me and the entire nation: thank you, thank you, thank you.”

The signing took place in a large ceremony with thousands of attendees on the White House South Lawn. Several plaintiffs of LGBTQ rights legal cases stood on the steps behind Biden as he spoke. Biden was joined by first lady Jill Biden, Vice President Kamala Harris and second gentleman Doug Emhoff. Senate Majority Leader Chuck Schumer, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., spoke before Biden, and artists Sam Smith and Cindy Lauper performed.

The Respect for Marriage Act does not guarantee the right to marry. It specifies that states must recognize same-sex marriages across state lines and that same-sex couples have the same federal benefits as any married couple.

The renewed push to codify the protections came after the Supreme Court overturned Roe v. Wade, which affirmed the right to have an abortion. Justice Clarence Thomas in his Dobbs v. Jackson Women’s Health Organization concurring opinion listed the 2015 ruling Obergefell v. Hodges, the case that affirmed right to same-sex marriage, as another landmark case that may be due for review.

Thomas also listed Griswold vs. Connecticut, the 1965 ruling in which the Supreme Court said married couples have the right to obtain contraceptives and Lawrence v. Texas, which in 2003 established the right to engage in private sexual acts.

Biden cited the case and Thomas’s concurring opinion in his recent remarks concerning the law.

“Sadly, we must also acknowledge another reason we’re here,” Biden said. “Congress is acting because an extreme Supreme Court has stripped away the right important to many Americans that has existed for half a century: the Dobbs decision. The court’s extreme conservative majority overturned Roe v. Wade and the right to choose.”

The Respect for Marriage Act does not codify same-sex marriage, though. It means that if the Supreme Court were to overturn Obergefell v. Hodges, states that oppose same-sex marriage could outlaw it, as anti-abortion states are doing after this summer’s ruling.

“It’s one thing for the Supreme Court to rule on a case,” Biden said. “It’s another thing entirely if the elected representatives of the people take a vote on the floor of the United States Congress and say clearly ‘love is love, right is right, justice is justice.’”

Democrats were joined by twelve Republican senators and 39 GOP representatives to pass the bill. It passed 258-169 in the House on Thursday with bipartisan support after successfully going through the Senate the week prior in a 61-36 vote.

Pelosi, reflecting on her long career in the House, said one of the last bills she signed at the end of her first stint as House speaker repealed Don’t Ask Don’t Tell, which barred LGBTQ servicemembers from discussing their sexuality. She noted the Respect for Marriage Act will be one of the last bills she will sign as she ends her second stretch as speaker.

Biden’s views, like those of many Americans, shifted to support same-sex marriage over his lifetime. Earlier in his decades long Senate tenure, Biden voted for legislation that would curb the advancement of LGBTQ rights like the 1996 Defense of Marriage Act. DOMA, as it came to be known, was overturned by the signing of the Respect for Marriage Act.

As recently as the 2008 election, Biden said in a vice-presidential debate that neither he nor former President Barack Obama, then a candidate, supported changing the civil definition of marriage. But in 2012 then-Vice President Biden announced his support for same-sex marriage, backing the measure even before Obama did.

Harris said she often thinks of the week of Valentine’s Day in 2004 when she performed some of the country’s first marriages of same-sex couples at San Francisco City Hall.

“I saw tears of joy that day as people celebrated basic human rights, the right to be recognized as a family, the right to be with the person you love,” Harris said. She went on to quote a San Francisco champion for LGBTQ rights and the first openly gay man to be elected to public office in California.

“As the great Harvey Milk once said: ‘Rights are won only by those who make their voices heard,’” Harris said. “And because you made your voices heard, marriage is more secure.”

Discussion Questions

  1. As indicated in the article, the push to codify the protections for same-sex and interracial couples came soon after the U.S. Supreme Court overturned Roe v. Wade (the landmark 1973 Supreme Court decision that affirmed the right to have an abortion). In your reasoned opinion, are these two developments causally connected? Explain your response.

    This is an opinion question, so student responses may vary. To the best of your author’s recollection, the Supreme Court’s decision to terminate a women’s right to choose is the first time in modern history that the Court has ended a right, rather than created one, through judicial mandate. Your author surmises that the sense of urgency surrounding the push to codify the protections for same-sex and interracial couples was based on concerns that the Court could choose to end those rights as well. Now that the protections have been clearly established by the U.S. Congress, it would be beyond the Court’s constitutional authority to abrogate those rights.
  2. As the article indicates, U.S. Supreme Court Justice Clarence Thomas in his Dobbs v. Jackson Women’s Health Organization (the Supreme Court decision that overturned Roe v. Wade) concurring opinion listed the 2015 ruling Obergefell v. Hodges, the case that affirmed the right to same-sex marriage, as another landmark case that may be due for review. Justice Thomas has been married to Virginia Thomas for over 35 years. The Thomas’s marriage is interracial, and a key component of the Respect for Marriage Act protects and preserves the right to have an interracial marriage. Comment on this apparent discrepancy.

    This question calls for student responses and opinions. It would be interesting to hear how one might attempt to logically support interracial marriage while simultaneously opposing same-sex marriage. In this discussion, students should be reminded that at its very foundation, anti-discrimination law strictly forbids discrimination based on both race and sex.
  3. As the article indicates, President Joe Biden’s views, like those of many Americans, shifted to support same-sex marriage over his lifetime. Earlier in his decades-long U.S. Senate tenure, President Biden voted for legislation that would curb the advancement of LGBTQ rights like the 1996 Defense of Marriage Act. DOMA, as it came to be known, was overturned by the signing of the Respect for Marriage Act. Comment on President Biden’s shift in opinion regarding same-sex marriage.

    Although the political battleground might refer to President Biden’s apparent shift in opinion as a “flip-flop,” your author believes that it is reasonable for politicians to change views over time, both as the person grows and as society changes.