Who defines your rights? Congress, courts or states?

Gordon L. Weil

Maine Sen. Susan Collins is a leading Republican sponsor of a U.S. Senate bill to ensure a federal right to same-sex marriage.

Sen. Lindsay Graham, a South Carolina Republican, proposes a bill to impose a national limit on abortion rights.  His move would limit a right as opposed to Collins’ effort to protect a right.

There’s more to both proposals than meets the eye.  They are part of a major conflict over what individual rights are protected under the U.S. Constitution.

Justice Clarence Thomas launched the conflict when the Supreme Court overruled Roe v. Wade, ending federal protection of abortion rights.  He served notice that the abortion decision could lead to the Court reversing other decisions on rights and leaving such decisions to Congress or the states.   The Collins and Graham bills respond to the threat he raised.

The Bill of Rights includes individual rights that cannot be overridden by government.  People also have other rights beyond these few.  Who decides what rights receive federal protection?

The issue boils down to the meaning of the Fourteenth Amendment of the Constitution, which says that states cannot “deprive any person of life, liberty or property, without due process of law.”  The Court has used it to protect a wide range of rights.  Abortion was considered a constitutionally protected right until Roe was overruled.

Does “due process” only give the Court the authority to ensure a fair procedure exists to protect rights or does it tell the Court also to define the rights receiving such protection?

The Court has used due process to find rights to safe workplace conditions, contraception, homosexuality and interracial marriage.  Thomas and Justice Samuel Alito, author of the Roe reversal decision, say that legislatures not courts should decide on rights, because due process is only about procedure.  

The Roe reversal moves toward deciding that, if Congress has not acted and due process is only procedural, then the determination of rights belongs to the states. 

Same-sex marriage has been found by the Court to be a right protected under the Fourteenth Amendment, just as abortion was.  What worries Collins and her co-sponsors is the possible reversal of that right by the Court, just as abortion was.

Taking the warning from Alito and Thomas seriously, they want Congress to pass a law saying that same-sex marriage is protected.  Then, the Court could keep its hands off.

The House of Representatives, under the Democrats, will go along with the proposal. The Senate needs 60 votes to end debate before a final vote.  With 50 senators affiliated with the Democrats, Collins needs nine more Republicans. It will take more time to line them all up, so the vote won’t be held until after the November elections.

Why can’t Collins find nine Republicans?  Some may not want to take a stand either way while they are up for re-election.  After the elections but before the new Congress is seated, they can then vote on the bill. She says, “This bill is going to pass.”  That remains to be seen.

Whatever passes is almost sure to offer less protection than the Court decision.  To pick up the remaining GOP votes, the sponsors will have to accept some legislated limits on same-sex marriage.  In effect, the right could turn out to be safer, but less broad.  The law would replace the Court decision.

Similarly, Graham’s bill would limit abortion rights.  The Court allowed the states to set their own rules, which could range from prohibition to a broad right, but Graham would take that kind of discretion away.  While prohibition would remain possible, states could do no more than his restrictive bill, which would set a 15-week time limit on abortions.

He knows his bill won’t pass unless the Republicans control both houses and the presidency, not possible until 2025 at the earliest.  So his ploy now is meant simply to influence who gets elected to the Senate in November.

If Graham’s move succeeds, the process of rolling back federal protection of individual rights could take off.  The Supreme Court seems primed, already having nullified a key part of the 1965 Voting Rights Act that assured African-Americans’ access to the polls.  Congress might have to step up to its responsibilities if the Supreme Court is bent on eliminating protected rights.

The gap between the will of the people and their government in Washington deepens.  Rights that have gained federal protection over the years have gained public support and wide acceptance.  The Alito-Thomas position would place the increasingly powerful Court, cool to rights, and the dangerously divided Congress in opposition to popular sentiment.

The Court and Congress seem not to get the message.  The same-sex marriage bill, sponsored by Collins, may serve as a limited and imperfect test of whether government will start listening to the people.