Two former top Republican officials are calling on Congress to pass a bill to protect same-sex marriage in light of Justice Clarence Thomas arguing for the Supreme Court to reconsider its ruling on the matter.
Theodore Olson, who held prominent roles in the Justice Department during the Reagan and George W. Bush administrations, and Ken Mehlman, who served as chair of the Republican National Committee in the mid-2000s, said in a Wall Street Journal op-ed on Monday that the court is unlikely to overturn Obergefell v. Hodges, the 2015 case that guaranteed a right to same-sex marriage, but Congress should act to settle the question.
“It’s unlikely that a subsequent Supreme Court decision would overturn Obergefell, but it would be foolhardy to take for granted that lower courts or future justices couldn’t adopt similar views as those expressed in Justice Thomas’s concurrence or attempt to weaken the rights that accompany civil marriage,” Olson and Mehlman wrote.
They noted the Respect for Marriage Act, which would protect the right to interracial marriage in addition to same-sex marriage, passed with a “strong bipartisan majority” in the House, adding that it should be passed quickly in the Senate.
All Democrats and 47 Republicans in the House voted for the bill, but the legislation faces uncertain odds in the Senate. A handful of Senate Republicans have announced their intention to support the bill, but others have announced opposition. If all Senate Democrats vote for the bill, at least 10 Republicans in the body will need to vote for it to overcome a filibuster that would prevent the act from advancing.
“It is incumbent on Congress to reaffirm that civil same-sex marriage is settled law and remove any uncertainty that gay and lesbian families could see their marriages delegitimized,” Olson and Mehlman wrote. “The Senate must ensure that all Americans are treated fairly and equally under the law.”
They added that undermining or removing these protections would be “cruel and unconscionable.”
Their op-ed comes in the aftermath of the Supreme Court voting to overturn Roe v. Wade, the case that protected a right to abortion for the past half-century.
Justice Samuel Alito, who wrote the majority opinion in the case, Dobbs v. Jackson Women’s Health Organization, noted that the court’s decision should not viewed as reflecting other rights or cases. But Thomas wrote in a concurring opinion, which is not binding, that the court should review other cases that were decided on similar legal reasoning to Roe, like Obergefell.