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Tipsheet

House of Representatives Votes on Respect for Marriage Act Following Hysteria Over Justice Thomas' Concurrence

Bob O'Neal/The Key West Citizen via AP

The U.S. House of Representatives on Tuesday voted in favor of the Respect for Marriage Act by a vote of 267-157. The legislation is looking to protect same-sex and interracial marriages and ensure they are treated equally to other marriages. It looks to repeal the Defense of Marriage Act (DOMA), legislation from 1996 signed into law by then President Bill Clinton that defines marriage as being between a man and a woman.

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The vote comes following fear-mongering from Justice Clarence Thomas' concurring opinion in the Dobbs v. Jackson decision, which opened the door to revisit other cases to do with privacy matters, including same-sex marriage and contraception. 

Justice Thomas' opinion was merely a concurrence, though, and the opinion of the Court from Justice Samuel Alito, as well as a concurrence from Justice Brett Kavanaugh emphasized that the Dobbs decision only applied to the issue of abortion and overturning Roe v. Wade.

That didn't stop the hysteria though. One of the five pro-abortion hearings called by congressional Democrats in seven days' times included "What's Next: The Threat to Individual Freedoms in a Post-Roe World," which was conducted last Thursday by the House Judiciary Committee. 

It was during that hearing where members such as Rep. Hank Johnson (D-GA) and Professor Melissa Murray, a Democratic witness, brought up Justice Thomas and the right interracial marriage, including as it applies to his own marriage. Justice Thomas' concurrence did not mention revisiting that right, which was guaranteed by the Supreme Court with the 1967 decision of Loving v. Virginia. 

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Professor Murray confirmed to Rep. Johnson that Fourteenth Amendment due process protections and equal protection grounds include the right to interracial marriage. When tasked with answering why Justice Thomas would exclude the Loving decision from his concurrence, Murray called it "a curious omission." She went on to claim "I am confused as to why [interracial marriage] was not included in Justice Thomas' long laundry list of rights to be overturned, but it surely would be there."

When the congressman offered "could it be that he himself enjoys that right, conferred under Loving," Murray responded that "it would not be the first time that someone offered freedom for me but not for me." Johnson added "that's pretty hypocritical."

From the House floor on Tuesday, Rep. Jerry Nadler (D-NY), who was among those members who introduced the legislation, and who chairs the House Judiciary Committee, also went after Justice Thomas. 

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Although a press release of his remarks from Rep. Nadler's office briefly references Justice Thomas, it appears he went off script. 

"And, although Justice Thomas did not mention the right to interracial marriage, that right relies on the same constitutional doctrines as the right to same-sex marriage and, therefore, it could be vulnerable to a legal challenge in the future as well," the press release quotes Nadler as saying. 

However, from the House floor, Rep. Nadler said that "the logic, the substantive due process logic, by which the  Court overthrew Roe v. Wade applies equally to Obergefell, to Loving, to Lawrence, in other words to the right to contraception, to the right to gay marriage, to the right to interracial marriage for that matter. Justice Thomas mentioned all that specially. Yes, he said this case doesn't involve that, we're not deciding that yet, which is what the portion of his concurrence said that Mr. Johnson read, but read the rest of his concurrence, where he said specifically that we should overrule or reconsider Obergefell and uh, Lawrence, which is consensual--which is gay marriage, which is consensual sodomy." 

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Nadler continued by mentioning that Thomas' concurrence "didn't mention Loving, though for some reason, which is interracial marriage, maybe the fact that he's interracial married and so is Senator McConnell, maybe that had something to do with it, but the same logic applies there."

Congress is also looking to vote on guaranteeing access to contraception this week. 

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