The United States Chamber approved, on Tuesday (19.Jul.2022), a bill that guarantees equality in marriage for people of the same sex throughout the American territory. The text received 267 votes in favor and 157 against. Among the deputies supporting the proposal, 47 are from the Republican Party.
In the same week, US lawmakers also endorsed another bill to ensure access to contraceptives. There were 228 favorable votes against 195 on Thursday (July 21). This time, only 8 Republicans joined the Democrats.
The 2 issues resurfaced in the US Congress after the overthrow of the right to abortion by the US Supreme Court at the end of June. With the decision, deputies mobilized and began to discuss other constitutional guarantees that may be threatened.
O same-sex marriage – guaranteed by jurisprudence Obergfell vs. Hodges– and access to contraceptive methods, protected for more than 50 years by the decision known as Griswold vs. Connecticutwere the two main agendas debated by congressmen.
the legislators recognized Also, last Friday (July 15), 2 bills that protect the termination of pregnancy in the USA:
- The 1st updates the Women’s Health Protection Act, which prohibits states from imposing restrictions on abortion. There were 219 votes in favor and 210 against;
- The 2nd prevents interference with the woman’s right to travel to perform the procedure in another State. It had the support of 223 deputies and 205 were against it.
The 4 proposals go to the Senate, but they run a considerable risk of being blocked. That’s because Capitol Hill has a Republican majority. of the 100 senators, 50 are from the Republican Party and 48 from the Democratic Party. The other 2 senators are not affiliated with either party.
For proposals to be approved, 60 votes are required. Assuming all Democrats vote in favor, at least 10 Republicans would have to be supportive of the demands.
The rights to abortion and contraception are considered the most threatened. Senate Republicans, except Congresswomen Susan Collins (Maine) and Lisa Murkowski (Alaska), oppose the procedure. This limits the possibility that any bill can move forward. Democratic Senator Joe Manchin of West Virginia is also against it.
In addition, part of the Republicans treat contraceptive methods and the termination of pregnancy in a similar way, which makes legislation related to the right to present the same difficulty in being approved.
Democrats and Republicans use these guidelines to motivate voters to vote in the midterm elections, scheduled for November this year. This could make the claim even more polarized.
Among the bills passed during the week, the one related to same-sex marriage may face the least resistance.
The bipartisan proposal, called Law of Respect for Marriagedetermines that no union should be discriminated by sex, race, ethnicity or nationality of individuals.
The vote result reflects the growing acceptance of same-sex marriage in the United States.
By 2022, 71% of Americans say be in favor of same-sex marriage, according to survey data Values and Beliefsheld by Gallup May 2-22.
When the North American company made its 1st survey, in 1996, only 27% were in favor of the initiative. It took 15 years for more than half of the US population to be in favor of marriage. In May 2011, approval reached 53%, although it dropped to 48% in December of the same year.
After 2011, surveys from the Gallup show growing support from Americans for legal union. In May 2015, one month before the decision Obergfell vs. Hodges, the approval percentage reached 60%. Then it dropped to 58%. But since then, the lowest rate recorded was 61% in 2016.
According to the company, the “increasing national support” reflects a shift in positioning in subgroups of the US population on the issue, including those who are traditionally against LGTBQIA+ marriage.
In 2016, for example, the majority of adults aged 65 and over were, for the 1st time, in solidarity with the initiative. At the time, 53% were in favor. Something similar happened among Protestants. In 2017, more than 55% started to supportand with Republicans in 2021 – the index has arrived to 55% in that same year.
Because of the increased support for same-sex legal unions, the survey concluded that an eventual Supreme Court ruling against federal protection of the right would be contrary to American public opinion.
The presentations and approvals of the bills were mainly in response to the recent statement by Judge Clarence Thomas. On the same day (June 24) that the Supreme Court annulled the jurisprudence Roe vs. wadethe judge stated that the court should reconsider other decisions related to LGBTQIA+ rights and contraceptives.
Thomas cited the jurisprudence Obergfell vs. Hodges (of the wedding), Lawrence vs. Texas (which concluded that States could not restrict same-sex sexual relations), and the Griswold vs. Connecticut (about contraceptive methods).
He said that Supreme Court justices have the “duty to correct the error established in these precedents”.
The actions taken that Friday (June 24) were viewed with concern by US authorities, human rights defenders and members of the country’s LGBTQIA+ community.
One search of the YouGov institute in partnership with the magazine The Economist, released on July 11, indicates that a majority of Americans oppose the Supreme Court’s decision to overturn similar decisions to Roe vs. wade.
Of the 1,500 respondents, 56% said they were against ending federal protections for same-sex marriage (Obergfell vs. Hodges). Also among respondents, 61% are in favor of the right to contraception (Griswold vs. Connecticut).
WHAT WAS “OBERGEFELL VS. HODGES”
James Obergefell and John Arthur James had a desire to get married after John was diagnosed with ALS (Amyotrophic Lateral Sclerosis), a terminal illness. However, they lived in Ohio, one of the US states that banned same-sex marriage. Because of this, the couple decided, in July 2013, to exchange vows in Maryland, a state where marriage was allowed.
Upon returning home, James and John filed a lawsuit in Ohio to have their marriage formally recognized. Three months after the wedding, John died from complications caused by the illness. On his death certificate, his marital status was identified as “single” rather than “married”.
James and John weren’t the only ones affected by the ban. Other couples in Ohio, Kentucky, Michigan and Tennessee were having the same problem. In seeking justice, the district courts of each state have rendered decisions favorable to the recognition of the union of couples. However, the sentences were appealed and reversed in the so-called Courts of Appeal (Court of Appealsin English).
The cases then moved to the United States Supreme Court. On June 26, 2015, the judges ruled by 5 votes in favor and 4 against that all 50 US states, the District of Columbia and island areas should allow, without any restriction, same-sex marriage and recognize to unions carried out in a third State.
The decision was based on the concept established by the 14th Amendment to the US Constitution, which deals with the rights of citizenship and equal protection for all before the law.
But there are differences between the formation of the current Supreme Court and that of 2015. Of the 9 judges who were part of the court for 7 years, 5 were conservative. Another 4 were liberals. In the decision, Conservative Justice Anthony Kennedy voted with the Liberals. Ruth Bader GinsburgStephen Breyer, Sonia Sotomayor and Elena Kagan.
The 2022 lineup has 6 conservative judges, including Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, appointed by former President Donald Trump. Only 3 are liberals, Ketanji Brown Jackson being the most recent. The judge, appointed by President Joe Biden, took inauguration on June 30.
WHAT WAS THE “GRISWOLD VS. CONNECTICUT”
The State of Connecticut passed the Barnum Act in 1879, which prohibited the use of any “drug, medicine, article or instrument” to prevent pregnancy. From the 1920s onwards, movements sought to repeal the legislation.
The oral contraceptive method was allowed for use in the US in 1960. The following year, the head of the Planned Parenthood in Connecticut, Estelle Griswold and her husband, gynecologist C. Lee Buxton, decided to challenge the law that prohibited contraception in court.
They also opened a contraception clinic. Days later, authorities closed the place and arrested Griswold and Buxton. They were convicted and fined, but decided to appeal to the Connecticut Supreme Court. The court upheld the determination
So Griswold appealed to the US Supreme Court. By 7 votes in favor and 2 against, the judges considered that the US Constitution should protect the privacy of couples against the State of Connecticut’s restriction on contraception.
Furthermore, the Court explained that the 1st, 3rd, 4th and 9th amendments together create the right to privacy in marital relationships. In this way, Connecticut legislation conflicted with the exercise of the right. Thus, it was considered null and void.
JURISPRUDENCES IN THE USA
Jurisprudence is the set of decisions of the courts. These decisions form precedents that must be followed by the Court later in the judgment of other cases.
For José Augusto Fontoura, professor of international law at USP (University of São Paulo), Supreme Court decisions have a greater impact than district courts.
The Supreme Court’s decisions “bind everything that is legislated or jurisprudential” in US courts. Fontoura explains that this is because the court has a hierarchy in the country and performs the function of applying and interpreting the Constitution.
“The US Supreme Court and its decisions are not superior to the Constitution”said the teacher.
Therefore, a Supreme Court decision can even prevent the application of a state law if the legislation is found to be contrary to what the Constitution establishes.
Thus, the Supreme Court’s decision to overturn Roe vs. wade exempts States from defining legislation that allows abortion. The same can happen with Obergfell vs. Hodges if it is knocked down, according to the professor.
He assesses that the jurisprudence that protects the right to same-sex marriage may fall.
Unlike the Brazilian judicial system, where the Federal Supreme Court (STF) judges all extraordinary appeals presented, the US Supreme Court chooses the case it wants to judge.
Fontoura says that if a judge perceives that a case needs to be reviewed by the court, he can file an appeal for the Court to discuss the previous decision.
This report was produced by Journalism intern Júlia Mano under the supervision of assistant editor Lorenzo Santiago.
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