If the US Supreme Court can overturn a half century of constitutional protections for abortion — as it did in June — what could be next?
It’s a question many in this wary, divided, and skeptical nation have asked. The answers are all too obvious, and same-sex marriage tops the list.
After years of celebrating the marriages of family, friends, and neighbors, the thought of letting conservative-leaning states turn back the clock on yet another hard-earned right would constitute another shock wave. But this time forewarned is forearmed. This rollback of rights is eminently preventable — that is, if the Senate moves quickly to assert that marriage equality is and will remain the law of the land.
A bipartisan group of senators is currently negotiating just such a proposal, attempting to tee it up for a vote as soon as this month, but still working to find those crucial 10 Republican senators essential to prevent the measure from being filibustered to death.
The Respect for Marriage Act would codify protections for same-sex and interracial marriage and repeal the 1996 Defense of Marriage Act, which defined marriage back then as between one man and one woman and allowed states to refuse to recognize valid same-sex marriages performed in other states. And while it has not been enforced or enforceable since the Supreme Court recognized and guaranteed same-sex couples the right to marry in the 2015 Obergefell decision, it remains on the books.
Fears over the “what next” question were raised immediately after the high court’s decision chucking out the constitutional protections that had been offered under the court’s 1973 Roe v. Wade decision. In fact, it was Justice Clarence Thomas’s concurring opinion that sent shivers down the spines of the LGBTQ community when he wrote, “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.
“We have a duty to ‘correct the error’ established in those precedents,” he wrote.
The 2003 Lawrence decision overturned a Texas law criminalizing gay sex and the 1965 Griswold decision found a law prohibiting the use of contraceptives violated a married couple’s right to privacy.
So before that parade of horribles comes marching through Main Street America, Congress needs to act.
In fact, the House passed the Respect for Marriage Act in July with the help of 47 Republicans, and that has given at least a handful of Senate Republicans sufficient cover to do the right thing. The Senate effort has been led by Wisconsin Democrat Tammy Baldwin and Maine Republican Susan Collins, who along with Ohio Republican Rob Portman, Arizona Democrat Kyrsten Sinema, and North Carolina Republican Thom Tillis have been negotiating language on religious liberty exemptions in an effort to bring more Republicans on board.
Utah Senator Mitt Romney, who during his term as Massachusetts governor was no fan of same-sex marriage after the Supreme Judicial Court’s 2003 Goodridge decision, is among those the group hopes to persuade to now join its effort.
A lot, of course, has changed since then. According to the latest Gallup poll on the issue, taken last May, a record high 71 percent of Americans say they support legal same-sex marriage, compared to 27 percent back in 1996.
Yes, change takes time. But as then-SJC Chief Justice Margaret Marshall wrote in that 2003 majority opinion, some things remain immutable.
“Marriage is a vital social institution,” she wrote. “The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations.”
The Massachusetts Constitution, she wrote, “forbids the creation of second class citizens.”
It would take another 12 years for the US Supreme Court to reach the same conclusion. Now that very basic premise must once again be protected — this time legislatively.
It speaks to the difficulty of doing that at the national level that some Republicans are reportedly not announcing their support for the Respect for Marriage Act for fear of touching off a firestorm of opposition and the pressure that goes with it. It shouldn’t take an act of political courage to vote in favor of preserving rights, but clearly for some it will.
As Baldwin and Collins wrote in a recent oped in The Washington Post, “Millions of American families have come to rely on the promise of marriage equality and the freedoms, rights and responsibilities that come with making the commitment of marrying the one you love.
“Individuals in same-sex and interracial marriages need, and should have, the confidence that their marriages are legal,” they wrote.
A Senate vote on the Respect for Marriage Act can make that happen. It can secure a right even the Supreme Court won’t be able to rip from the fabric that now protects today’s American family.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.