Gay marriage law for fear of a gay marriage ban – will further regulations follow?

US Congress
A gay marriage law for fear of a gay marriage ban – what “originalism” could still do

Same-sex marriages have been legal in the United States since 2015, and now the law is coming. Also because there are fears that the constitutional court could overturn the law. Just like other precedents that a judge is already talking about.

The US Senate has passed legislation protecting the right to same-sex marriage by a large majority. The approval of the second chamber of parliament, the House of Representatives, is still missing, but it is considered a formality. The United States is thus securing a right that Americans have actually been able to invoke by constitutional court ruling for seven years. But one of the Supreme Court justices, arch-conservative Clarence Thomas, had made it clear that he and his colleagues wanted to reconsider the relevant ruling.

All marriages should be recognized

In keeping with US tradition, the new regulation is called the “Respect for Marriage Act”. This does not only mean marriages between homosexuals, but also connections between different ethnic groups. So about black and white people. In the US, this has only been legal throughout the United States since a Supreme Court ruling in 1967. However, the original text of the US Constitution makes no mention of same-sex marriages. Some of the judges at the Supreme Court conclude from this: Without appropriate mention there can be no fundamental legal claim. That’s why the lawyers had overturned the right to abortion in the summer – because it was not taken into account by the founding fathers.

This school of law is called “originalism” and has now won a majority in the conservative-dominated constitutional court. It takes little imagination to envision the drastic impact judgments made on this basis can have. Neither homosexuality nor multiracial marriages nor contraception was an issue in 1787 when the US Constitution was drafted. Should they come under scrutiny and be overturned according to the “will” of the constitution’s founders, it would be up to each state to decide whether its representatives would allow or ban the pill and condoms, for example.

Arch-conservative judge with double standards

The new “Respect for Marriage Act” takes into account the possible consequence of a possible Supreme Court ruling: US federalism. While the law does not force any US state to allow same-sex couples to marry, it would require states to recognize all marriages legally contracted elsewhere. It also protects existing same-sex marriages. The same applies to marriage between people of different ethnicities. Which brings back Judge Clarence Thomas’s game. Because the lawyer is black, his wife is white.

Observers from the constitutional court had already noticed in the summer that Thomas uses double standards when it comes to “originalism”. In his Opinion on Abortion Rights, he identified three specific decisions by his predecessors, the subject of which is not mentioned in the Constitution and should therefore be re-examined: Griswold vs. Connecticut (right to contraception), Obergefell vs. Hodges (gay marriage) and Lawrence vs. Texas (right to consensual sex between adults). What precedent he didn’t mention was: Loving vs. Virginia – the right to multiracial marriages like his.

Opponents of mixed marriages

Although other parts of the US Constitution expressly prohibit ethnic discrimination, there are still voices, particularly on the Christian right, that explicitly reject such associations (such as homosexual unions). Republican Senator Mike Braun from Indiana said in March that he considered the “legalization of interracial marriages in 1967 to be wrong” and that the federal states should decide on the admissibility, not the federal states.

Sources: DPA, Courthouse News, CBS 4“political“