December 6, 2022
by Alexis Tarkalson
Supreme Court Justice Clarence Thomas lit the fire underneath the pro-LGBTQ senators when he included a more rebellious comment in his dissent for the controversial Dobbs v. Jackson Women’s Health Organization (2022). This specific case caused an astronomical amount of fury and fear amongst the left-leaning population when it returned the abortion ‘right’ back to the states. Thomas only contributed more hysteria when he wrote:
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” … we have a duty to “correct the error” established in those precedents.”
Justice Thomas, 2022
In laymen’s terms: because Roe v. Wade’s use of ‘substantive due process’ was found to be faulty, cases utilizing it in the past should be given a second look.
Due to this philosophical musing demonstrated by one justice, a bill has been whipped up at record speed and already marched right on through the Senate. This bill, Respect for Marriage Act, while being simultaneously ‘harmless’ yet dangerous, could be the Democrat party’s strongest hope to pacify their angry and out-for-revenge constituents.
The Respect for Marriage Act
This act was introduced July 18, 2022 , and since then has made its way through the Senate, passing with, unfortunately, flying colors. It’s arch-nemesis is the Defense of Marriage Act (DOMA), an act that it hopes to repeal. DOMA became effective in 1996 and federally recognized marriage as being between a man and a woman. It additionally released states from having to recognize same-sex marriages from other states.
The Respect for Marriage Act will first, allow the federal government to recognize any type of marriage so long as it is valid in the state it is issued from. And secondly, in a follow-up of the first feat, this act will make the marriage completely credible but will also not force a state to issue a same-sex marriage license should it be contrary to their state law.
This bill’s primary goal is to protect same-sex and interracial marriages. It is now up to the House to stop it, and if they fail to do so, President Biden, who has already shown his support for the bill, will most likely sign it into law.
So, what does this mean for our religious liberties that we might be taking for granted at the moment?
While the bill was going through the rigamarole in the Senate, that very topic came up to the surprise of no one. And through what probably was like an intense tug-o-war of religious freedoms vs. same-sex marriage, this amendment was eventually passed along with the bill.
The amendment provided this cushion and protection for the religious entities, but not for individual rights of conscience and religious belief:
“…nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. “
Although this might seem all encompassing enough, what is important to note is that any “entities whose principal purpose is the study, practice, or advancement of religion” has been shown to be not enough before. Remember the Yeshiva University case? Because they were not entirely devoted to teaching the Torah every minute of the day, they are now being faced with lawsuits due to their unwillingness to recognize an LGBTQ school.
An article written by David P. Deavel brought up several excellent reasons as to the dangers of this bill, but one in particular caught my interest. He revealed that Senator Ted Cruz attempted to propose an amendment to this bill that would specify the barring of child marriages and incestuous marriages. His amendment was struck down. Apparently, more senators agree with President Biden that “love is love” with no boundaries.
What is ‘substantive due process’ and why has it caused this much trouble?
This type of due process has brought forth four popular rights now touted about as if they were oxygen rather than the inventions of supreme court justices beginning sixty years ago. Because of substantive due process, we now have:
- The right to privacy (specifically with regard to contraception)
- The right to pre-viable abortive measures
- The right to interracial marriages
- The right to same-sex marriages
Unfortunately, despite its monumental ability to bring about unbeknownst rights, the mass population knows little or understands little about this type of due process.
Procedural due process, the process that we have been taught since middle school, is the government’s responsibility to notify and provide a hearing if they are considering stripping away a right. Substantive due process, albeit repeatedly exercised in court cases, is never quite defined. It is the other coin to procedural due process–meaning it must provide substantive justification as to why the right is being stripped away. To some degree, one might say that procedural due process provides the how for the equation, and substantive due process provides the why.
Substantive due process has been deemed to be the protector of fundamental rights rooted in the United States history and tradition. This is what the Supreme Court justices had to decide in Roe v. Wade and Dobbs v. Jackson. Was abortion rooted in our country’s history and way of life? Using faulty historical references, the Supreme Court (1973) voted “yes,” but the Supreme Court (2022) in delivering the Dobbs decision delved into history and concluded that, no, abortion cannot be protected by substantive due process.
Justice Alito in the opinion for Dobbs wrote, “The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “deeply rooted” one “‘in this Nation’s history and tradition’”.
Justice Thomas and Substantive Due Process
So, what does any of this have to do with the Respect for Marriage Act? Justice Thomas, in the quote mentioned at the beginning of the article, insinuated that any court case dealing with substantive due process could have faulty premises.
One court case in particular that he mentioned was an extremely hot button to push: Obergefell v. Hodges (2015). Obergefell was the court case that lit the White House in rainbow colors when it decided there was a fundamental right for marriages to be afforded to same-sex couples.
Obergefell was also strongly supported by what the majority justices at that time decided was needed: substantive due process.
Now, the left is scrambling to create a bill wherein “marriage equality” is embedded in federal law, not to be budged by Justice Clarence Thomas or any other justices for that matter.
And now, thanks to Obergefell v. Hodges, if anyone objects to this bill, they are deemed ‘bigots’. For as Justice Kennedy so tolerantly put it in the majority opinion for Obergefell, “…rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”
The Respect for Marriage Act must be passed because as President Biden puts it, “love is love”, and if you don’t understand that, then you are a bigot and uninformed. It is 2022, get with the times, right?
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