Joni Madison – interim president of the Human Rights Campaign, a leading advocacy organization for gay marriage – also cited GOP support in applauding the bill’s passage.
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“The fact that this bill passed with strong bipartisan support – earning the votes of 47 Republicans, proves that marriage equality is supported by a wide swath of the American people, and is not going anywhere,” she said in a written statement.
Rep. Jerrold Nadler, D-N.Y., the bill’s sponsor, and other Democrats referred to comments by Associate Justice Clarence Thomas in recently intensifying calls for Congress to provide protection for same-sex marriage. A member of the 5-4 majority, Thomas wrote an opinion concurring with the court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe.
The high court “should reconsider” all precedents regarding “substantive due process,” including Obergefell, Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous,’ … we have a duty to ‘correct the error’ established in those precedents,” Thomas said, quoting two previous high court opinions.
Associate Justice Samuel Alito, however, said in the majority opinion the decision to overrule Roe does not call into question the justices’ rulings in Obergefell and other cases. “[W]e have stated unequivocally that ‘[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he wrote.
Associate Justice Brett Kavanaugh reiterated that view in his own concurring opinion. “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” he wrote.
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And Thomas agreed in his own concurrence that nothing in the court’s Dobbs decision should be inferred to imperil precedents unrelated to abortion.
In addition to Obergefell, Thomas cited Griswold v. Connecticut (a 1965 ruling that protected the right of married couples to use contraception) and Lawrence v. Texas (a 2003 decision that guaranteed the right of same-sex couples to engage in private, consensual sexual activity) as among substantive due process precedents the high court should reconsider. Under the judicial doctrine of substantive due process, specific rights that are not spelled out in the U.S. Constitution are still considered protected.
Rep. Mike Johnson, R-La., said in floor debate before the vote the bill is “completely and clearly unnecessary” and “another effort to delegitimize the Supreme Court.” The country’s current policy on marriage “is under no threat of any legislative or judicial body anywhere,” he said.
