Friday, July 29, 2022 | 2 a.m.
The “Respect for Marriage Act” is short. The bipartisan measure which passed the House of Representatives officially repeals defunct provisions of the Defense of Marriage Act and requires states to recognize marriage without regard to “sex, race, ethnicity or national origin.” Democrats see the measure as a rallying point ahead of the 2022 midterm elections. Republicans should deny them the opportunity and support the measure instead.
Republicans must answer three questions when it comes to same-sex marriage. First, does the Constitution permit states to discriminate in marriage between consenting adults? Second, should legislators prohibit same-sex marriage as a matter of sound public policy? Third, does it make political sense?
The Constitution doesn’t and shouldn’t allow the states to discriminate against same-sex couples anymore than it allows states to discriminate against mixed-race couples. Unfortunately, the Supreme Court has mangled the issue by calling on substantive due process to craft myriad rights as it pleases.
The Constitution contains no explicit right to marry … for anyone. In fact, several rights, including the rights to privacy, contraception and, until the Dobbs v. Jackson decision, the right to abortion aren’t found anywhere in the Constitution, either. The Supreme Court has, on occasion, found that certain liberty interests are so fundamental under the 14th Amendment that the government may not limit them absent a compelling reason.
The unenumerated rights crafted as a matter of substantive due process effectively amend the Constitution without any process at all other than justices memorializing their perspectives. If Americans wish to create new rights not enumerated in the Constitution, we have a process to amend it.
Prohibiting state marriage discrimination doesn’t require flimsy substantive due process arguments. The 14th Amendment’s equal protection clause is more than sufficient. Constitutional scholar Ilya Shapiro eloquently articulates why:
“Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: States cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.”
This isn’t a radical progressive contortion of constitutional text. The whole meaning of the 14th Amendment’s equal protection clause was to prohibit government-imposed caste systems. Its protections shouldn’t merely extend to the types of marriage recognized at the time.
The authors of the 14th Amendment specifically rejected the idea that the equality provisions should be limited to race-based classifications. They meant it to be broad. Whether or not congressional authors understood it to encompass same-sex marriage is irrelevant.
Even if the current Supreme Court were to overturn Obergefell v. Hodges based on its weak substantive due process grounding and scant equal protection justification, engaging in marriage discrimination is poor public policy and even worse politics.
I will advocate for the free religious expression of viewpoints regarding sexuality until my last breath. Individuals and even businesses should be able to have beliefs, opinions and perspectives that aren’t popular or welcome. The Constitution treats government as importantly different and limits its ability to discriminate considerably. Limited-government conservatives ought to think through whether they want states meddling in private consensual relationships.
Then there’s the obvious political reality. Instead of focusing on inflation, foreign affairs and immigration policies, Republicans resurrecting traditional marriage amendments give Democrats a popular campaign issue. According to Gallup polling in 2022, a whopping 71% of Americans support recognizing same-sex marriages on par with opposite-sex marriages under the law.
State-sanctioned marriage discrimination isn’t constitutional, it isn’t particularly conservative, and it’s terrible politics.
Republicans shouldn’t give Democrats a gift by arbitrarily opposing what the Constitution already requires.
Cameron Smith is a former political attorney. This column originally appeared on al.com.