Today’s Entry: @brianmuddradio Is there anything that really changes with the gay marriage bill or is it just political posturing? Haven’t heard about this being an issue in years.
Bottom Line: Well, there is a reason you haven’t heard about it being an issue in years. That’s because it hasn’t been an issue in years. I’ll explain why that’s the case and where we stand in a minute. First to set the stage for what’s happening... Earlier this week the Senate passed legislation which would federally protect same-sex marriage and interracial marriage in all states, which now goes to the House where it’s expected to pass. While all states have had individual laws pertaining to marriage, there’s also federal law and specific to the issue of same-sex marriage, a critical Supreme Court ruling. Let’s start with what federal policy currently is. The current federal law governing marriage is the 1996 Defense of Marriage Act.
A bipartisan measure at the time, the legislation signed into law by President Bill Clinton formally defined marriage, as recognized by the federal government, as being between one man and one woman. Subsequent to that federal law having passed, several states passed related legislation as well including Florida. Florida first banned same-sex marriage under state law in 1977. In 1997, the state passed legislation prohibiting the recognition of same-sex marriages from other jurisdictions within the state. Most recently, in 2008, voters in Florida approved a constitutional amendment which banned both same-sex marriage and civil unions. However, it has been “legal” everywhere since 2015. And that’s also the last time you likely heard of this being an issue anywhere within this country.
The United States Supreme Court ruled twice on this issue over the past decade. First, in 2013, the Supreme Court struck down most elements of the federal Defense of Marriage Act. Then, in 2015, the court ruled in another related case which went much further. In the 2015 SCOTUS ruling, the court ruled that same-sex couples had a “fundamental right” to marry on the same terms and conditions as opposite sex couples, with all accompanying rights and responsibilities. They further stated the right was guaranteed by the US Constitution under the Due Process Clause and Equal Protection Clause under the 14th Amendment. That ruling rendered all federal and state policy inhibiting same sex-marriage right null and void. Thus, why you’ve not heard about the issue since. So about now you might be wondering if what’s happening in Congress currently is little more than posturing. The answer is a bit of both yes and no.
The current Respect for Marriage Act would officially repeal the 1996 Defense of Marriage Act. Further, it explicitly states that all states are to recognize same-sex and interracial marriages conducted in other states and territories. Now, given that all federal and state laws which are in contradiction to the Supreme Court’s ruling aren’t currently effectual, it might seem like political posturing. The argument for the advancement of it stems from the Supreme Court’s ruling overturning Roe v. Wade. This legislation is one of several efforts undertaken within the current Congress to codify under law what Supreme Court rulings had previously established as legal. Just as the SCOTUS ruling overturning Roe brought the abortion issue back to the states, where states are able to determine what’s legal within their jurisdictions, the same would be true if the Supreme Court were to overturn their 2015 decision. This is the crux of the argument for the advancement of the legislation.
While there’s no expectation, nor any cases currently challenging on this issue that are being considered by the Supreme Court, the argument can be made that we don’t know what the future may hold. So yes, on one hand it’s a bit of political posturing. On the other hand, it can be rationalized as potentially being something more.
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