Editorial: Wisconsin should codify same-sex marriage, not wait for a Supreme Court decision

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It should be no surprise to anyone who has lived in the U.S. for more than a few years that what are considered “rights” can be changed. Our Constitution was written that way: to be amended, time and again.

It’s been officially amended 27 times so far. That fact might actually anger some of the founding fathers. Thomas Jefferson wanted the Constitution to be scrapped and rewritten every two decades; the author of the Declaration never wanted the country’s founding documents to be treated as sacred. Twenty-seven amendments would be palsy in his eyes.

The laws of this country are incredibly malleable.

This became clear when the Supreme Court flipped Roe v. Wade.

Abortion was largely illegal before 1973, largely legal between 1973 and 2022, and up to the states since June 24, 2022.

That’s not the issue we’re weighing in on today.

Supreme Court Justice Clarence Thomas thinks the argument that the 14th Amendment’s right to privacy being used to legalize things like abortion and gay marriage is flimsy.

Section 1 of the amendment, which was passed after the Civil War in order to give rights to freed slaves, states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

None of us are legal experts. We cannot speak to if that argument is flimsy or not. What we do know is that that argument has been used successfully to legalize abortion via Roe v. Wade and legalize interracial marriage via Loving v. Virginia, as well as to overturn racial segregation in education via Brown v. Board of Education.

With the recent Supreme Court decision, it has become clear that laws can easily and quickly change based on a court’s decision.

The U.S. House passed the Respect For Marriage Act on Tuesday, July 19, to codify legal same-sex marriage nationwide, but it still has to go to the Senate.

Even with U.S. representatives taking action, state officials should take steps now to legalize same-sex marriage in Wisconsin as well.

It’s generally viewed as amoral to cheat on your spouse or to be an absentee father. That doesn’t mean it should be illegal.

In Wisconsin and in most of the country, a man can only marry the man he loves and a woman can only marry the woman she loves because of a single Supreme Court decision: Obergefell v. Hodges (2015).

The successful argument behind the Obergefell decision was based on the 14th Amendment. The argument is largely identical to the one that had been behind Roe v. Wade.

Like Roe, Obergefell is fragile.

Justice Thomas himself wrote in a court opinion that he wants the Supreme Court to reexamine Obergefell. It’s unclear if the other conservative justices of the high court agree with Thomas.

In Wisconsin and throughout the country, conservatives argue for individual freedoms – life, liberty and the pursuit of happiness.

If Wisconsin wants to be a land of freedom, the Legislature should act to allow people to marry who they choose.