States Should Decide on Same-Sex Marriage, Sen. Graham Says

Sen. Lindsey Graham (R-S.C.) speaks to reporters on Capitol Hill on March 5, 2021. (Alex Wong/Getty Images)

U.S. states, and not the federal government, should decide whether same-sex marriage should be legally recognized, Sen. Lindsey Graham (R-S.C.) said on Aug. 7.

Graham’s comments came during a panel discussion on CNN’s “State of the Union” after H.R. 8404, the proposed Respect for Marriage Act, was approved on July 19 by the House of Representatives in a 267–157 vote, with the backing of 47 Republicans. The legislation is pending in the 50–50 Senate, where it's expected to have the support of Sens. Rob Portman (R-Ohio) and Susan Collins (R-Maine).

Among the Republicans voting for the measure were House Republican Conference Chair Elise Stefanik (R-N.Y.) and Rep. Scott Perry (R-Pa.), who chairs the conservative House Freedom Caucus. Voting "no" were House Minority Leader Kevin McCarthy (R-Calif.) and House Minority Whip Steve Scalise (R-La.).

The legislation would repeal the Defense of Marriage Act (DOMA), a 1996 law that defined marriage as the union between one man and one woman, and allowed states to refuse to accept same-sex marriages recognized under other states’ laws. After then-President Bill Clinton signed DOMA, about 40 states banned same-sex marriage. DOMA was found to be unconstitutional by the Supreme Court in Obergefell v. Hodges (2015), a ruling that held that the 14th Amendment requires states to license and recognize same-sex marriage.

The new legislation would also codify the Obergefell ruling.

Respect for Marriage Act supporters say the measure is needed because the Supreme Court’s June 24 decision overturning the 1973 abortion precedent case Roe v. Wade potentially opened the door to the future reversal of Obergefell by the court.

Although Graham said he doesn't think the Supreme Court would actually reverse Obergefell, he said neither the court nor the federal government should be deciding the issue of same-sex marriage for the entire nation.

“I’ve been consistent. I think states should decide the issue of marriage and states should decide the issue of abortion,” Graham told CNN.

“I have respect for South Carolina. South Carolina voters here I trust to define marriage and to deal with [the] issue of abortion and not nine people on the court. That’s my view.”

The proposed Respect for Marriage Act is a distraction from the problems Americans are really facing, Graham says.

“We’re talking about things that don't happen because you don't want to talk about inflation; you don't want to talk about crime," he said, with Sen. Richard Blumenthal (D-Conn.) at his side.

Blumenthal said the Obergefell ruling must be codified because “there’s a real danger of it being overturned” by the high court.

“This Supreme Court has indicated it has a hit list, beginning with marriage equality, contraception, possibly others as well, Loving v. Virginia,” the senator said.

In Loving, the Supreme Court ruled in 1967 that laws forbidding interracial marriage violate the 14th Amendment.

In his concurring opinion (pdf) in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, Justice Brett Kavanaugh specifically wrote that the Dobbs ruling “does not threaten or cast doubt” on Loving or Griswold v. Connecticut, a 1965 Supreme Court decision recognizing the right to use contraceptives.

In a separate concurring opinion, Justice Clarence Thomas said the court, now that it has overturned Roe, should also reconsider its “demonstrably erroneous” rulings in cases such as Obergefell and Griswold. Thomas didn't identify Loving as a precedent that should be overturned.