Thistlethwaite: Marriage equality is now protected, but that’s not enough
On Tuesday, President Biden signed the Respect for Marriage Act into law in a White House ceremony, recognizing LGBTQ and interracial marriages in federal law.
I have many friends in LGBTQ marriages, and some have told me that they and even their kids have worried that their marriages will be taken away by this current Supreme Court.
Thank heavens Congress and the president passed this law to prevent that, but it is alarming that it was necessary.
We all need to be alarmed. Rights that Americans have taken for granted, sometimes for decades, are now imperiled.
The Supreme Court ruled in 2015 in Obergefell v. Hodges that same-sex couples have the constitutional right to marry. But some have become very concerned that marriage equality could be overturned since the Supreme Court’s decision in June in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
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And that’s not all. Not by a long shot. Justice Clarence Thomas’s concurring opinion in the case that overturned Roe v. Wade stated flat-out that other long-standing precedents are on the chopping block: “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote.
And President Biden quoted Thomas’s concurrence in his address at the signing ceremony and promised we will stand up for transgender children and for the physicians who help them.
We must go forward, not backward.
Griswold v. Connecticut established a married couple’s right to use contraception without government interference in 1965. The court ruled in the 2003 case of Lawrence v. Texas that states could not criminalize sodomy, and Obergefell v. Hodges established the right for same-sex couples to marry in 2015.
That’s right. If this right-wing controlled court continues its judicial overreach, contraception could become illegal, legal persecution of LGBTQ people could become worse and marriage equality could be overturned.
Paul Schiff Berman, a professor at George Washington University Law School, has made this crystal clear since the court overturned Roe v. Wade: “The logic of Justice Alito’s opinion, as the dissent pointed out, would absolutely threaten the constitutional legitimacy of all constitutional privacy rights,” Berman said. “It goes against the institutional obligation to respect precedent. And it also goes against, as Chief Justice Roberts pointed out in his opinion, the principle that you don’t decide in a given case, more than you have to resolve in that case.”
I don’t know about you, but I want my privacy. I want the final say on my own body. I want to love the person I love and marry the person I love without government interference. I want my sexual orientation to be my business and nobody else’s. The majority of Americans agree with me. Unfortunately, we are not represented by this Supreme Court.
So, what is to be done when there is a court that has a conservative majority appointed by presidents elected with a minority of the electorate that is so out of step with the majority of the American people? This fall, according to a Gallup poll, confidence in the Supreme Court sunk to 25%, an all-time low.
I believe that the kind of preventative legislation President Biden just signed into law with the Respect for Marriage Act must be enacted for a range of privacy issues.
I am delighted that my LGBTQ fellow Americans have some measure of protection for their marriages and the White House signing ceremony was very moving.
As Speaker Nancy Pelosi said on that sunny day in Washington: “America has always been about expanding freedom, not restricting it.”
May it be so.
Rev. Dr. Susan Brooks Thistlethwaite is president emerita and professor emerita of Chicago Theological Seminary. She and her husband now make their home in the Vail Valley.