Democrats are passing House bills on same-sex marriage and contraception that guard against an illusory threat from the Dobbs case, while posing a real threat to religious liberty, as suggested by a close reading of the texts of the various bills.
Speaker of the House Nancy Pelosi (D-CA) lauded the new bills Thursday in the wake of last month’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned the Roe v. Wade (1973) abortion precedent.
The Dobbs decision holds that there is no federal constitutional right to abortion, and returns the issue to state legislatures. Justice Samuel Alito, writing for the majority, explicitly stated that the holding applied to abortion, and not other rights.
However, President Joe Biden and his party have claimed that the Dobbs decision places other rights guaranteed by the Court — including access to contraception, same-sex marriage, and even interracial marriage — at risk of being overturned.
They have cited a concurring opinion by Justice Clarence Thomas in which he states that the Court’s other precedents on “substantive due process” — the doctrine on which Roe was based — should be revisited in light of the holding in Dobbs.
However, as Breitbart News noted in a fact check, Thomas accepted that Dobbs applied only to abortion, and did not say that other rights should be overturned — only that they should be placed on a different basis other than “substantive due process.”
On Tuesday, the House passed Rep. Jerrold Nadler (D-NY)’s “Respect for Marriage Act,” which purports to defend same-sex marriage — which has been guaranteed by the Court since 2015 — from future attack by codifying it at the federal level. 47 Republicans joined Democrats in passing that bill, and it may have enough Republican votes in the Senate to pass as well.
On Thursday, the House, with eight Republican votes, passed a bill by Rep. Kathy Manning (D-NC) to guarantee access to contraception, which Democrats have claimed for more than ten years, without evidence, is under threat from Republicans.
In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that private employers could exclude contraceptives from health insurance policies due to religious objections, though that case involved an objection to contraceptives that also induce abortion (abortifacients), not to contraceptives in general, which there is no effort by Republicans to restrict.
Both of these laws are a form of “virtue signaling” to rally Democrats in the wake of the Dobbs case, and in the wake of the Democrat-run Congress’s failure to codify Roe, though same-sex marriage and contraception access are the law of the land.
Both laws also place Republicans in a tough political bind. By voting against legislation that has little more than a political purpose, they risk being labeled as “against LGBT equality” or “against contraception” in midterm election ads this fall.
However, both laws are raising concerns among social conservatives because of the threat they could pose to religious liberty. The Supreme Court has carefully balanced personal rights with religious liberty; Democrats’ new laws do not.
The “Respect for Marriage Act,” for example, says that state law will be honored but makes no mention of religious liberty, or the freedom of religious institutions to make their own rules regarding which marriages they will approve.
Worse, Manning’s bill on contraception explicitly states: “this Act supersedes and applies to the law of the Federal Government and each State government … notwithstanding any other provision of Federal law, including the Religious Freedom Restoration Act of 1993.”
Manning’s bill appears to be written explicitly to challenge the Supreme Court’s finding in Hobby Lobby — that “methods of contraception that violate the sincerely held religious beliefs of the companies’ owners” infringe upon religious liberty.
Thus, Democrats are using a contrived panic over the implications of the Dobbs ruling not only to mobilize their base, but also to roll back statutory protections for religious liberty that have frustrated them in the past.
Republicans may fear being cast as troglodytes or religious zealots. But the reason to oppose these laws is clear: they exploit liberal outrage over the loss of abortion “rights” to erode the explicit right to religious liberty provided by the Constitution.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.