Political Science and Law

Debating the Electoral System of the United States

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by Cassandra Skolnick and Sanjana Sankaran, December 16, 2020

To conduct this collaboration, the authors participated in a coin flip. Cassandra lost the coin flip and has been entrusted to debate in favor of the Electoral College. Sanjana, the winner of the coin flip, has been entrusted to debate in favor of Ranked Choice Voting. Both authors have agreed to suppress all personal opinion and bias for the purpose of this debate. To make things more interesting, this debate was conducted through text message.

DEBATE QUESTION

Which electoral system is better for the United States: the existing Electoral College or Ranked Choice Voting (RCV)?

Cassandra (Nov. 23, 2020 – 11:36 AM)

Opening Statement: I am disinclined to acknowledge this debate question as it is presented. The question is categorically wrong, deriving from the assumption that the Electoral College and ranked choice voting are mutually exclusive. Maine used ranked choice voting in the 2020 election, and the votes were then allocated to an elector in the Electoral College. So, your argument is still in favor of the Electoral College and there is no debate to be had.

Sanjana (Nov. 24, 2020 – 5:30 PM)

Opening Statement: I believe that ranked choice voting is better for the United states. The Electoral College and RCV are not mutually exclusive, and that is shown in various countries, including New Zealand, Australia, Canada, and Great Britain, who use RCV for various elections, both major and local, without the use of an elector. RCV is the epitome of majority rules, the system we have now is plurality rules, where a majority of people who vote do not get the candidate of their choosing.  Benjamin Reilly, an electoral system design expert at the University of Western Australia, said at best, RCV serves as a “prophylactic against extremism,” something America sorely needs (Kambhampaty).

Cassandra (Nov. 24, 2020 – 9:01 PM)

Your opening argument calls for the implementation of a Ranked Choice Voting system because it is “…the epitome of majority rules” (Skolnick and Sankaran). An analysis conducted on Ranked Choice Voting in the journal Electoral Studies “…analyzed some 600,000 votes cast using RCV in four local elections in California and Washington” (Waxman). The conclusion from the analysis was that none of the elections resulted in the winner receiving a majority of the votes.

Cassandra (Nov. 24, 2020 – 9:30 PM)

Ranked Choice Voting is an attractive concept, and I am willing to concede that it may be entertaining to rank candidates based on who you like best and who you like least; but let me propose a question to you. You are a passionate American who wants to perform their civic duty and vote in an upcoming presidential election. The ballot is in front of you and you have a selection of five candidates. You think hard and rank your top three choices.

Cassandra (Nov. 24, 2020 – 9:34 PM)

When the polls close, your three candidates are eliminated and one of the remaining two is declared the winner. Did you have a say in who won the election? Did the majority of Americans have a say in who won the election? Instead of voting for one candidate or against another, you now have to ask Americans to think strategically to make sure that the worst-case scenario fails to emerge.

Sanjana (Nov. 24, 2020 – 9:40 PM)

You say Americans have to prevent the worst case scenario, however many democrats believed Biden was the worst or last case scenario. There were many progressive candidates who had huge followings such as Warren and Sanders. Those democrats would argue that RCV would have given those people a fighting chance. Referencing your point about the elections in California, the paper that Waxman cites discusses the pros and cons of RCV, and says the candidate did not receive over 50% of the vote because of “voting exhaustion” (Waxman).

Sanjana (Nov. 24, 2020 – 10:00 PM)

While I can agree this is a problem with the RCV system, it has not been a problem for Australia for the past century. In a majority of these cases candidates always get over 50 % of the votes after a certain amount of rounds, and might I add that voting exhaustion is only a problem when voting is made to be extremely difficult. Mail in ballots being sent back, lack of same day registration, voter intimidation and suppression all contribute to voter exhaustion, and not solely because of RCV.

Sanjana (Nov. 24, 2020 – 10:04 PM)

In fact, according to many election result archives from the “Fair Vote,” places with RCV have increased voter turnout because candidates feel less guilty for voting for minority parties; additionally, because it is done in rounds, there is higher voter participation than the plurality system. Between 2006 and 2010 there was a 43% increase in voter turnout for the mayoral elections in Oakland, California (Richie and Hill).

Sanjana (Nov. 24, 2020 – 10:22 PM)

According to Rob Richie, the Conservative and Labor party used RCV for electing a mayor in London and “The Conservatives elected a winner on the first count, while the Labor nominee earned 59% of the final round vote after securing 37% of first choices – with more than 99.9% valid ballots out of the nearly 90,000 ballots cast” (Richie).

Sanjana (Nov. 24, 2020 – 10:30 PM)

One of the main reasons why the current system is dangerous to democracy is because it enforces the concept of negative partisanship whereby people would rather vote against someone than for someone. We saw this in the 2016 election where many people were unhappy with both options so they abstained, or they were extremely unhappy with the democratic option so they voted against Clinton rather than for Trump. This in turn creates more division and a politicization of issues that should be bipartisan such as the COVID-19 pandemic (“We’re Doing Elections Wrong”).

Cassandra (Nov. 27, 2020 – 12:40 PM)

This is the problem with proponents for RCV. There is a general understanding of RCV, but not the many parts that make the system up. For one, are you arguing for Instant Runoff Voting (IRV) or a Single Transferable Vote Proportional Representation (STV)? You brought up Australia but are you aware that Australia employs both of these RCV voting systems? I’m going to assume you have been thinking of Instant Runoff Voting (IRV) since you keep speaking about the presidential election, so we will start there…

Cassandra (Nov. 27, 2020 – 12:43 PM)

The problem in the United States with IRV is that the advantage it proposes is illusory at best (Minguo). Proponents believe that IRV is the solution needed to prevent supporters of minor parties from stealing votes from a major party and therefore benefiting the other major party in an election: the spoiler effect. That sounds fantastic, as long as the minor party has no chance of actually winning the election. Well, Sanjana, I propose this situation to you; what happens when a minor party gains traction and becomes a threatening major third party? Well, then supporters pose the same risk they pose in a plurality system. Let’s explore this…

Cassandra (Nov. 27, 2020 – 12:50 PM)

Suppose that strong third party comes along. For the sake of argument, we will call this party the American Party. The party identifies as a politically centrist party, leaning left on issues involving social oppressions and environmental concerns. On November 3rd, your preference is the American candidate, and the Democratic candidate is naturally your second choice. After several rounds of counting, the American candidate is eliminated and your votes transfer to your second choice, the Democratic candidate. The Democrat ultimately wins the election. Great, you may be disappointed that the American candidate lost, but at least the Democratic candidate who shares a lot of your beliefs won.

Cassandra (Nov. 27, 2020 – 12:54 PM)

Now, let’s throw a monkey wrench into your early celebration of the IRV system. What if the Democratic candidate is eliminated before the American candidate? Unless all of the votes transfer to the American candidate, which is unlikely, the Republican candidate would win the election. You just helped the Republican win the election by not ranking the Democrat first. Which puts you in a familiar situation that you are experiencing in the current plurality system if you vote your true preference (Minguo).

Cassandra (Nov. 27, 2020 – 12:57 PM)

I understand your frustration with the Electoral College, but you are overlooking a fundamental flaw of IRV. The example that I described above fails to recognize one of your preferences in the election. By voting American and then Democrat, you increased the chances that the Democrat will be eliminated before the American. Once this happens, your preference for the Democrat over the Republican is essentially discarded or ignored. The only way that you can make sure that your vote is not wasted is to vote for one of the two major party candidates as your first choice (Minguo). Wait a minute, isn’t that what we’re doing already?

Cassandra (Nov. 27, 2020 – 1:05 PM)

You keep speaking passionately about democratic majority rule and bringing up countries like Australia and New Zealand. To quote you directly, “RCV is the epitome of majority rules” (Skolnick and Sankaran). I want to counter by throwing out Athens and France, where democratic majority rule ultimately led to tyranny of the majority, “…the majority of the electorate pursues exclusively its own objectives at the expense of those of the minority factions” (Wikipedia, “Tyranny of the majority”). This is one of the pitfalls of democracy that our founding fathers feared when they established this country and why they created the Electoral College. It ultimately destroyed Ancient Athens. Now, you want to establish a voting system that could result in this precise dilemma.

Cassandra (Nov. 27, 2020 – 1:08 PM)

Let’s take a moment to deliberate the case of Ancient Athens. During the 4th century BC, Athens suffered catastrophic democratic collapse amid “…crippling economic downturn, while politicians committed financial misdemeanors, sent its army to fight unpopular wars and struggled to cope with a surge in immigration” (Cambridge). What caused these horrific conditions? Two words… “mob rules” (Cambridge). Democratic majority cleared the way for demagogues and tyrants to seize power, ultimately destroying the city-state from the inside.

Sanjana (Nov. 27, 2020 – 2:09 PM)

The Electoral College may have been a solution back then when several Americans did not have access to education. However, with the advancement of technology, and increased education of American’s, the American government should recognize that we are capable of making informed decisions. Now I want to be extremely clear when discussing RCV I am specifically interested in applying that to primaries, and local elections rather than general elections. In the general election I believe that we should only go by popular vote.

Sanjana (Nov. 27, 2020 – 2:12 PM)

Within governmental systems RCV will be more beneficial, especially in a two party system because there are several candidates within each party you fall under various different umbrellas. You have the Tea party, Green party, Progressives, Moderates, and Libertarians. Because of the vast amount of choices that exist RCV would allow candidates to freely rank their candidates without the instance of a spoiler candidate or vote splitting. RCV will actively prevent extremists from either side of the spectrum from reaching the general election.

Sanjana (Nov. 27, 2020 – 2:15 PM)

On one side you have conservatives whose extremists are white nationalists or supremacists, and on the other side one may see extreme socialism or communism. RCV also results in less negative campaigning because if they want to be someone’s second choice or third choice they still have to appeal to a broader base and withhold divisive language that only leads to more polarization (Neal).

Sanjana (Nov. 27, 2020 – 2:39 PM)

Now looking purely at the objections of this system, I will argue that these worries are unfounded. The first concern is that it will go against the concept of “one person, one vote”. Because of this, several lawmakers have tried to litigate this system as being unlawful and unconstitutional. However, several of these litigations have not succeeded because there is nothing in the constitution that proves RCV is considered to be unconstitutional. The second concern is that it may be too confusing for voters, and they will have to know all of the candidates policies, and how the whole voting process works. To this concern I say, “well, obviously.” In any voting system, every voter should be educated in the candidates’ policies in order to make a proper decision and then decide whether or not they want to support the candidate.

Sanjana (Nov. 27, 2020 – 3:00 PM)

In order to make an informed decision, voters need to be exposed to candidates from an unbiased perspective. As voters become more educated in the candidates’ policies, extremism will go down. Much of the reason that Trump rose to power was because of rampant misinformation spread by social media and sites such as Fox News. Lastly, many critics also argue that with a less negative campaign, a politician’s past will not be held accountable.

Sanjana (Nov. 27, 2020 – 3:07 PM)

To this, I argue that just because a campaign is less negative towards their opponent does not mean their past won’t be held accountable. It simply means that incendiary language and vitriol will be less prevalent. In the case of Senators Bernie Sanders and Elizabeth Warren, many Sanders supporters attacked Warren and her supporters online with truly hateful comments. I am not saying that RCV will completely eliminate the concept of the online bully, but it will tame the fires and create a sense of unity amongst the party (Neal).

Cassandra (Nov. 27, 2020 – 6:10 PM)

While you have changed your stance significantly, I still find myself perplexed by your desire to support “tyranny of the majority.” Whether you are debating as an avid proponent of RCV or Popular Vote, you are still stacking the deck unfavorably against the minority. Do urban city Americans understand the needs of rural American farmers? No. That is an absurd and reckless thought. Then why should we rely on these same urban Americans to choose leaders to represent rural Americans?

Cassandra (Nov. 27, 2020 – 6:12 PM)

You know the answer to that question… we shouldn’t! You then go on to argue, “…An election should not have to depend on the Electoral College outcome of two states, but rather the country as a whole” (Skolnick and Sankaran). I agree! You just argued in favor of the Electoral College, because it prevents two states from deciding the outcome of an entire election for the country. Your argument is against implementing a system based on the popular vote!

Cassandra (Nov. 27, 2020 – 6:14 PM)

Arguing against only one of many reasons why the Electoral College was established is equally as reckless. As you stated, in a negative connotation, one of the reasons was that our founding fathers were concerned that not all voters were informed enough to choose a leader (Seigel). The Electoral College was also established to balance interests of majority and minority groups across state lines. Why was this important? Our nation had “…fought its way out from under a tyrannical king and overreaching colonial governors. They didn’t want another despot on their hands” (History). Why do you think it requires two-thirds of Congress and three-fourths of states to ratify a constitutional amendment to append or abolish the Electoral College?

Cassandra (Nov. 27, 2020 – 6:15 PM)

If you believe the Electoral College doesn’t represent the will of the people it represents, then pass a Constitutional Amendment to tie electors to their state’s popular vote. In other words, eliminate faithless electors. What concerns me is your reason for debating in favor of RCV or Popular Vote is not because you believe them to be better electoral systems, but because you believe the systems will favor one political ideology over another.

Cassandra (Nov. 27, 2020 – 6:16 PM)

Whether we believe in particular political ideologies or not, barring actions that violate our natural rights, Americans have the right to celebrate political ideologies that are representative of who they are and how they believe. No electoral system should be established that eliminates political ideologies in favor of a single majority, because that is when democracy burns and tyranny reigns supreme.

Cassandra (Nov. 27, 2020 – 6:26 PM)

Closing Statement: As we stated at the beginning of this collaborative debate, we must remove our personal opinions and biases in order to effectively argue in favor of the electoral system we were assigned. There is a lot of fear, anger, and uncertainty dominating our nation presently. To blame an electoral system that has worked for over three hundred years because your ideologies have been oppressed is not the way to right the ship. I remain disinclined to agree with my friend’s argument in favor of Ranked Choice Voting and general elections decided by Popular Vote. This debate transcends to the heart and soul of a government that our founding fathers wanted to make immune from tyrannical oppression and domination that we fought desperately to escape. Overwhelmingly, the argument has been that Ranked Choice Voting and the Popular Vote would allow for the majority of Americans voices to be recognized. I contend that they already are. The Electoral College is far from perfect, but it gives each state the ability to cast votes in favor of a candidate that represents the will of their constituents.

Sanjana (Nov. 27, 2020 – 6:38 PM)

Closing Statement: I just would like to say that even though I find the Electoral College the source of many problems in the political sphere of America, abolishing it is only one part of the solution. Ranked choice voting and enabling the popular vote to decide the president-elect will allow for the will of the people to actually be heard. Ranked choice voting has been proven to also expand the two party system and allow for third party or minority party candidates to be heard as well, it is not necessarily in favor of one party over the other. RCV does have the ability to eliminate political extremism. RCV in practice has prevented spoiler candidates so voters will actually feel excited to vote for the candidate of their choosing. RCV in practice will reduce the polarization and political divide in this country.

CONCLUSION

The debate for the Electoral College vs. Ranked Choice Voting and the Popular Vote is one that is dominating headlines. The authors of this collaborative piece were given a limited number of exchanges in order to debate the opposing systems. We now ask you—as an unbiased reader—to decide who debated their assigned voting system better. Comment below with your thoughts, but please remember to be respectful.

Works Cited

“Historical Presidential Election Map Timeline.” 270toWin.Com, www.270towin.com/historical-presidential-elections/timeline/.

Kambhampaty, Anna Purna. “What Is Ranked-Choice Voting? Here’s How It Works.” Time, Time, 6 Nov. 2019, 5:45 PM, http://time.com/5718941/ranked-choice-voting/.

Neal, Jeff. “Ranked-Choice Voting, Explained.” Harvard Law Today, 26 Oct. 2020, http://today.law.harvard.edu/ranked-choice-voting-explained/. 

“The Problem with Instant Runoff Voting.” Minguo.info, http://minguo.info/election_methods/irv.

Richie, Rob. “New Zealand Holds National Election with Ranked Choice Voting.” FairVote, FairVote, 15 Dec. 2015, www.fairvote.org/new_zealand_holds_national_election_with_ranked_choice_voting. 

Richie, Rob, and Steven Hill. “FairVote.org: The Real Story on Ranked Choice Voting in Oakland’s Mayoral Election, 2010.” FairVote, 11 Nov. 2010, http://archive3.fairvote.org/press/oakland-rcv-response/.

Roos, Dave. “Why Was the Electoral College Created?” History.com, A&E Television Networks, 15 July 2019, http://www.history.com/news/electoral-college-founding-fathers-constitutional-convention.

Seigel, Jillian. “The Electoral College and Popular Vote Explained.” RepresentUs, RepresentUs, http://act.represent.us/sign/electoral-college/.

Skolnick, Cassandra, and Sanjana Sankaran. “Debating the Electoral System of the United States.” SBU Brooklogue: Stony Brook University Undergraduate Journal for Humanities and Social Sciences, 16 Dec. 2020, https://sbubrooklogue.com/2020/12/16/debating-the-electoral-system-of-the-united-states/

“Tyranny of the Majority.” Wikipedia, Wikimedia Foundation, 22 Nov. 2020, http://en.wikipedia.org/wiki/Tyranny_of_the_majority.

Waxman, Simon. “Ranked-Choice Voting Is Not the Solution.” Democracy Journal, Democracy Journal, 3 Nov. 2016, 3:03 PM, http://democracyjournal.org/arguments/ranked-choice-voting-is-not-the-solution/.

“We’re Doing Elections Wrong | Patriot Act with Hasan Minhaj | Netflix.” YouTube, uploaded by Netflix Is A Joke, 22 June 2020, www.youtube.com/watch?v=MykMQfmLIro.

Supreme Court Packing – How safe is the precedent established by Obergefell v. Hodges?

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by Cassandra Skolnick, October 30, 2020

The passing of Supreme Court Justice Ruth Bader-Ginsburg left the United States in insurmountable mourning. While many of us took time to reflect on the life of a human rights icon, conservatives fixated on the opportunity to pack another conservative justice into an already ideologically polarized Supreme Court (hereto referred to as, “SCOTUS”).

Supreme Court Justices Clarence Thomas and Samuel Alito also wasted little time mourning the loss of a longtime colleague and friend. Within a month of her passing, both justices were expressing their disgust over legal precedent created in the landmark 2015 Supreme Court decision of Obergefell v. Hodges, legalizing same sex marriage. Thomas questioned the courts involvement in the case to begin with:

“It would be one thing if recognition of same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”

(Nanos)

The Trump administration’s appointments of justices Neil Gorsuch and Brett Kavanaugh, and nomination of Amy Coney Barrett to the bench would certainly tip the balance in favor of conservatives who are hard pressed on overturning Obergefell. 

However, I propose in this article that the legal precedent set by Obergefell is safe and here to stay. I will defend my opinion through an analysis of five supporting arguments; the textualist interpretation of law by Supreme Court Justice Neil Gorsuch, the court principle of stare decisis, growing empathy and support for same sex couples, the Full Faith and Credit Clause of the United States Constitution, and the potential for legislative intervention.

Supreme Court Justice Neil Gorsuch

Supreme Court Justice Neil Gorsuch has not been the pariah conservatives had hoped for when President Trump appointed him to the SCOTUS. Gorsuch is a textualist; someone who interprets the law by how it is written.

In July of 2019, David Savage of the Los Angeles Times said of Gorsuch, “He is a libertarian who is quick to oppose unchecked government power, even in the hands of prosecutors or the police. And he is willing to go his own way and chart a course that does not always align with the traditional views of the right or the left” (qtd. in Ballotpedia).

We saw evidence of textualist interpretation in June of 2020, when Gorsuch joined Supreme Court Justice John Roberts and the liberal majority in Bostock vs. Clayton County; a ruling that states that Title VII of the Civil Rights Act protects gay and transgender employees from employment discrimination (Leonardi).

Gorsuch was right in his interpretation. In the majority opinion, Gorsuch determined that it would not be possible for an employer to discriminate on an employee on the basis of their sexual orientation or gender identity without also discriminating on them on the basis of sex. Discrimination on the basis of sex is prohibited by law, therefore civil rights protections are extended to gay and transgender employees.

It sounds like a clear-cut interpretation, but conservatives were furious with Gorsuch for his ruling. There was a public outcry, with evangelicals and right-wing media calling Gorsuch a traitor and sell-out (Arkes, Perano). However, Gorsuch made his ruling based on an interpretation of law that was already established. While it remains to be seen how he would respond to an opportunity to overturn Obergefell; textually speaking, I have a hard time believing Gorsuch will join a conservative majority in overturning existing precedent.

Stare Decisis

Relatively few people know about the court principle of stare decisis, but this Latin phrase translates to mean “…to stand by that which is decided” (Young). Generally, this means that once the court has established a legal precedent, it usually commits to uphold that legal precedent when ruling on similar cases.

While this has been a common court principle throughout history, I consider it imperative to point out that Supreme Court Justice Clarence Thomas has made it abundantly clear to his colleagues that he does not believe in being bound to the court principle of stare decisis. Thomas wrote, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it” (qtd. in Reuters).

With the exception of Thomas, the SCOTUS has remained steadfast in their position, reluctant to overturn precedent without significant rationalization. Overturning Obergefell would mean the potential revocation of the marriages of hundreds of thousands of same sex couples. It would be irretrievably damaging to the Court’s image if they disrupted the lives of hundreds of thousands of Americans without irrefutable proof that Obergefell is infringing on constitutional liberties.

Americans Support Same Sex Marriage

Public opinion has historically had minimal impact on SCOTUS decisions, but the latest studies by researchers show that this has changed in recent years. One research collaboration, SCOTUSPoll, concluded “that the court’s position in every major case this term was exactly in line with public opinion” (Smith). What does that mean for the future of Obergefell?

Well, support for same sex marriage has grown extensively since the SCOTUS ruling in 2015. A recent survey conducted by the Public Religion Research Institute (PRRI) “…found about 70% of Americans said they support granting same-sex couples the right to marry — the highest percentage of supporters the survey has recorded. 28% of Americans said they opposed it” (Andrew). Republicans even showed increased support. The same survey conducted by PRRI found that “…50% of Republicans say they support same-sex marriage, their percentage of support still jumped since the 2017 survey when 42% supported it” (Andrew).

The once stable position of the Catholic Church has also seen a remarkable shift, when a documentary premiered and revealed Pope Francis declaring support for civil unions of same sex couples (Horowitz). While civil unions are not the same as marriages, it is the first time the Catholic Church has expressed any form of support for same sex couples.

Corporate America is another area seeing improvement in their support of same sex marriage. Companies like Nabisco have come under fire from the right-wing conservative coalition–One Million Moms–over commercials expressing messages of inclusion, acceptance, and support for same sex couples. They have organized boycotts in an effort to impede further progressive stances, but these boycotts are mainly symbolic.

However, the biggest confirmation of this shift in support for the LGBTQ+ community may be the growing number of openly gay and transgender politicians being elected to public office. Last month, Sarah McBride, a transgender woman from Delaware, won her primary bid by over 90% of the vote. She is now poised to become the first openly transgender politician ever elected to any state senate (Rodriguez). According to Victory Fund, “Since 1991, Victory Fund has helped elect thousands of LGBTQ people to positions at all levels of government” (Victory Fund).

The level of support in this country is at all-time highs. With public opinion clearly opposing an overturn of Obergefell, the chances remain slim that the SCOTUS will choose to review any cases that attempt to reverse the 2015 precedent.

Full Faith and Credit Clause

The Full Faith and Credit Clause (FFCC) is the most disputed of my arguments. Used for the purpose of enforcing judgments across state lines, the FFCC also recognizes legal marriages contracted in another state. However, the argument has been made that the framework for the FFCC, “does not mandate recognition of same sex marriages or that it does so for limited purposes” (Singer). Prior to Obergefell, scholars also interpreted the FFCC to cover residents of states where same sex marriage was legalized, “but not nonresidents seeking to evade their restrictive home state marriage laws” (Singer).

However, with the Obergefell decision, the FFCC now provides fundamental support for same sex marriage. To stress this argument, I need to explain two important events from the nineties: the lawsuit, Baehr v. Miike, and the Defense of Marriage Act (DOMA).

In 1993, Baehr v. Miike, “was a lawsuit in which three same-sex couples argued that Hawaii’s prohibition of same-sex marriage violated the state constitution” (Wikipedia, “Baehr v. Miike”). The Supreme Court of Hawaii ordered the case reviewed by a trial court to determine whether or not the state was justified in prohibiting same sex couples from marrying. The state failed to present a convincing argument, and the judge ruled that excluding same sex couples from marriage was indeed discrimination (Lambda Legal).

The ruling in Baehr v. Miike panicked conservatives in Congress, who recognized that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits” (Wikipedia, “Defense of Marriage Act”). That’s because legalizing same sex marriage in Hawaii would mean forcing other states to recognize same sex marriages from Hawaii under the FFCC. In response, they passed legislation known as the Defense of Marriage Act (DOMA).

DOMA was a straightforward law passed by Congress during the Clinton administration. “It defined marriage for federal purposes as the union of one man and one woman, and allowed states to refuse to recognize same sex marriages granted under the laws of other states” (Wikipedia, “Defense of Marriage Act”). The intention behind DOMA was to create a barrier to the FFCC, preventing states from having to recognize same sex marriages that were performed in states where it was legal.

The SCOTUS cases of United States v. Windsor in 2013 and Obergefell v. Hodges in 2015 ruled the two sections of DOMA unconstitutional, thus legalizing same sex marriage and restoring the power of the FFCC to recognize same sex marriages across state lines.

Legislative Intervention

The 2020 national election is probably the most important election of our lifetime. Learning from the 2016 fiasco, we know better than to rely on polling to indicate the winners in various races. However, I believe we are going to see a much-needed change in power.

A Democratic majority in the House of Representatives, Senate, and Presidency, would mean passing of a broad legislation known as the Equality Act. The Equality Act means exactly what it says, “…consistent and explicit anti-discrimination protections for LGBTQ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service” (HRC).

In a survey conducted by PRRI on support for legislation like the Equality Act, they found, “More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations” (Vandermaas-Peeler et al.).

The main obstacle to passing this crucial legislation has been Senate Majority Leader Mitch McConnell (R-KY) and the Republican majority in the Senate. McConnell has repeatedly refused to hold a floor vote on the Equality Act, regardless of the fact that it has passed the House of Representatives. Pending any surprises in November, we should finally witness the advancement of this crucial piece of legislation.

Conclusion

While nobody can predict what the future holds, I contend that the arguments above provide significant obstacles to conservatives hoping to overturn the precedent established by Obergefell v. Hodges.

Works Cited

Andrew, Scottie. “70% Of Americans Support Same-Sex Marriage — a New High — a New Survey Finds.” CNN, Cable News Network, 22 Oct. 2020, 6:14 PM ET, http://www.cnn.com/2020/10/22/us/same-sex-marriage-support-increases-trnd/index.html.

Arkes, Hadley. “Here’s The Only Path Open To Republicans After Neil Gorsuch’s Betrayal.” The Federalist, The Federalist, 29 June 2020, http://thefederalist.com/2020/06/25/heres-the-only-path-open-to-republicans-after-neil-gorsuchs-betrayal/.

“Baehr v. Miike.” Wikipedia, Wikimedia Foundation, 17 Oct. 2020, http://en.wikipedia.org/wiki/Baehr_v._Miike.

“Baehr v. Miike.” Lambda Legal, 9 Dec. 1999, http://www.lambdalegal.org/in-court/cases/baehr-v-miike.

“Defense of Marriage Act.” Wikipedia, Wikimedia Foundation, 21 Sept. 2020, http://en.wikipedia.org/wiki/Defense_of_Marriage_Act.

Horowitz, Jason. “Pope Francis, in Shift for Church, Voices Support for Same-Sex Civil Unions.” The New York Times, The New York Times, 21 Oct. 2020, http://www.nytimes.com/2020/10/21/world/europe/pope-francis-same-sex-civil-unions.html.

Leonardi, Anthony, and Nicholas Rowan. “Supreme Court Rules Workers Cannot Be Fired for Being Transgender or Gay.” Washington Examiner, 15 June 2020, http://www.washingtonexaminer.com/news/supreme-court-rules-workers-cannot-be-fired-for-being-transgender-or-gay.

Nanos, Elura. “Clarence Thomas Refuses to Hear Kim Davis’s Case, But Calls Obergefell Decision a ‘Problem’ Only SCOTUS ‘Can Fix’.” Clarence Thomas Criticizes Obergefell When Rejecting Kim Davis Case | Law & Crime, Law & Crime, 5 Oct. 2020, http://lawandcrime.com/supreme-court/clarence-thomas-refuses-to-hear-kim-daviss-case-but-calls-obergefell-decision-a-problem-only-scotus-can-fix/.

 “Neil Gorsuch.” Ballotpedia, https://ballotpedia.org/Neil_Gorsuch.

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