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Amodei should have voted as a conservative, not a Republican

David Colborne
David Colborne
Opinion
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It’s tempting to assume Rep. Mark Amodei (R-NV) simply forgot his primary was over.

Being charitable for a moment, there is a certain kind of small-c conservative logic to opposing federal legislation on seemingly settled issues, such as same-sex marriage and access to contraceptives. Same-sex couples can get legally married anywhere in the country and their marriages are legally recognized everywhere in the country. 

Similarly, though states differ on who’s allowed to prescribe contraceptives — Nevada, for example, approved a bill in 2021 allowing pharmacists to prescribe oral contraceptives like they do in California in Utah — there isn’t a single state in the country which prohibits anyone from being prescribed birth control of some form or another. 

So why should Congress pass any laws guaranteeing recognition of same-sex marriages and prohibiting states from banning contraceptives? Surely any additional statutory language on those subjects is likely to do more harm than good.

Having acknowledged that, Amodei represents Nevada — yes, a comparatively rural and Republican slice of it, sure, but a slice that still produced Nevada’s first two openly gay mayors. Winnemucca, not exactly a bastion of left-leaning cosmopolitanism, hosted its first Pride parade last year. Oh, and let’s not forget that the brothels in Amodei’s district would go out of business in a hurry if contraceptives became significantly harder to come by.

Amodei is not representing paper ballot counties, in other words — Nye and Esmeralda counties are Rep. Steven Horsford’s problem — which is why Amodei’s recent votes against both the Respect for Marriage Act and the Right to Contraception Act were disappointing.

Yes, there is a certain kind of partisan logic to opposing legislation proposed by Democrats when you’re serving as Nevada’s lone Republican federal legislator. To paraphrase a line from Robert Heinlein, if you can’t find something to vote for, find something to vote against — if you’re a Republican, you could certainly do worse for your political career than voting against high-profile Democratic bills, regardless of the language or effect contained within them. It’s not like most of your constituents, regardless of their political affiliation, read federal legislation anyway — so being able to say on television that, yes, Democrats did a thing and you voted against it has a certain kind of value to a certain audience.

That said, this is Rep. Mark Amodei and Congressional District 2 we’re talking about. The closest election he’s ever faced as a congressman is the primary he just won against Danny Tarkanian, and it still wasn’t close — he won with more than 54 percent of the vote while Tarkanian, who tried to flank Amodei on his right, limped away with less than 33 percent. 

Though there will always be a few people who call him a “RINO” and a “commie” on Facebook, there’s nowhere near enough daylight to Amodei’s right (and certainly nowhere near enough Democratic voters to his left) for him to feel remotely threatened by anyone. That congressional seat is his for as long as he wants it — he doesn’t need to play silly partisan games to pander to the “Fox News is liberal, actually, and run by globalist Marxists” crowd.

He can, in other words, afford to be a conservative, not just a Republican.

***

For decades, conservatives have justifiably complained about how Democrats were far too comfortable with achieving policy outcomes through the rulings of nine unelected justices of the Supreme Court instead of spending the political capital necessary to put their preferred policies into statutory language. Many of the rights we currently enjoy today — including the right to marry someone regardless of their race or gender and the right to legally access contraceptives regardless of marital status — are the product of Supreme Court rulings issued decades ago, not congressional legislation.

One of the consequences of this overreliance on judicial rulings is that many of the laws the Supreme Court struck down decades ago are still on the books, though — for now, at least — they can’t be enforced. Why expend the time and political capital to overturn bad law when there’s a court ruling which magics the language away?

Consequently, the Clinton-era Defense of Marriage Act is still in the U.S. Code. If United States v. Windsor and Obergefell v. Hodges are ever overturned, the federal government — including the IRS — will no longer be permitted to recognize same-sex marriages and states will once again be allowed to throw the Full Faith and Credit Clause of the U.S. Constitution in the trash if the acts, records, and judicial proceedings of another state happen to involve a same-sex marriage.

This, if you’re representing Nevada, is a bit of a problem because our voters, unlike Congress, actually spent the political capital necessary to fix our mistakes. 

In 2000, an overwhelming majority of Nevadans (I was in the small minority, for the record) voted for Question 2, which added a clause to our state constitution that declared that, and I quote, “Only a marriage between a male and female person shall be recognized and given effect in this state.” Two decades later, however, a slightly smaller majority (which, for the record, I was part of) did something unprecedented — we voted to become the first state in the country to repeal a Defense of Marriage Act-era prohibition on same-sex marriage.

When Amodei said that, at the state level, the issue of same-sex marriage “had been dealt with by the people of Nevada in a straightforward and transparent fashion,” that vote is what he was referring to. Nevada, however, did not — and cannot, in fact — compel the various administrative organs of the federal government or our neighboring states’ governments to recognize marriages conducted in this state. Consequently, without legislation explicitly overturning the Defense of Marriage Act, same-sex married couples are only a court ruling away from, among other things, losing access to the same federal tax benefits opposite-sex married couples enjoy — the subject of United States v. Windsor, in other words. Additionally, if the Defense of Marriage Act is ever reinstated, same-sex couples living in Arizona, Utah, or Idaho (among several other states) who choose to visit and marry in Nevada will no longer have their marriages recognized in their home states.

Voting in favor of the Respect for Marriage Act, then, should have been an obvious choice for Amodei. The language of the bill — all 544 words of it — is short and specific. It removes the topic of same-sex marriages out of the realm of unaccountable judicial review and into the realm of open and transparent legislation where it should have been decided in the first place, it prevents the federal government from refusing to recognize marriages legally conducted in Nevada according to our state’s laws, and gives more out-of-state tourists a reason to visit and fund our state.

The best time to overturn the Defense of Marriage Act would have been the following day after its passage. The second-best time would have been after the Supreme Court ruled its language moot in 2015. The next-best time is now. No, it shouldn’t have taken Dobbs v. Jackson Women’s Health Organization to remind congressional Democrats that offshoring their legislative duties to nine unelected justices was a bad idea with obvious pitfalls, but ensuring the Full Faith and Credit clause of the Constitution is adhered to — even when some state legislators are grossed out by the acts, records, and judicial proceedings other state legislators will countenance within their borders — is a legitimate role for the federal government.

***

Finding a conservative case for voting in favor of the Right to Contraception Act is admittedly less straightforward.

It’s a longer bill, for starters, and begins with a series of findings which admittedly rub against Republican cultural sensibilities — including, for example, the finding which reaffirms Carey v. Population Services International, a 1977 court case which held that a state cannot constitutionally place any restrictions on the advertisement, sale, and distribution of contraceptives to individuals of any age. Even that finding, however, is more complicated than it seems at first glance — the New York law overturned in that case prohibited the sale or distribution of contraceptives of any kind (including non-hormonal point-in-time contraceptives, such as condoms) to a minor under 16 regardless of whether their parents sought or consented to the purchase or not.

Additionally, since many forms of contraception are only available through the healthcare system — a system which the federal government, through Medicare, the Affordable Care Act, and other similar legislation is already deeply embedded and involved in — it’s fair, from a conservative point of view, to wonder if the bill wouldn’t just provide a right to obtain contraceptives but would also require others to pay for a person’s access to that right. The authors of the bill, however, recognized that objection and addressed it by specifically limiting application of the bill against affecting existing federal and group insurance coverage. This language also helps ensure the bill doesn’t run afoul of Burwell v. Hobby Lobby Stores, which ruled that Affordable Care Act provisions requiring employer-provided insurance plans to provide contraceptives violated the religious freedoms protected under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993.

I can also appreciate that, from certain religious perspectives, contraceptive methods more generally are considered morally problematic.

That said, there’s a difference between believing it’s immoral to use contraceptives and legislating that morality upon others who don’t share that conviction — a practice which was still fairly common in living memory before Griswold v. Connecticut and Eisenstadt v. Baird overturned state restrictions on contraceptives in 1965 and 1971, respectively. Prior to those rulings, many states, as well as the federal government, had Comstock laws (inspired by the anti-vice advocacy of former U.S. Postal Inspector Anthony Comstock in the 19th century) on the books which prohibited transportation, importation, purchase and possession of contraceptives.

That different states legislate according to different standards of morality is, of course, nothing unusual — Nevada in particular likes to pride itself on its comparatively libertine image, except when it doesn’t. It’s also not unusual for a state, such as Utah, to prohibit residents and visitors from importing products from other states which run afoul of their particular code of morality. Conservatives, in fact, tend to extoll this sort of behavior — given that we live in one of the more libertine of the 50 tiny laboratories of republican government, it seems a little greedy to begrudge other states the same right to govern their own affairs that we somewhat infamously enjoy.

Having acknowledged that, however, there is a fundamental difference between telling Nevadans to keep their liquor at home when they visit their friends and family in Utah and telling Nevadans to keep their contraceptives at home when they visit their friends and family in a hypothetical, say, pre-Griswold Connecticut. To understand why, consider: How, exactly, is a Nevadan with an intrauterine device — a device considered an abortifacient by some — supposed to keep it at home? For that matter, is a Nevadan who is taking a prescribed oral contraceptive — which works best if taken over time and which, if taken at a high enough dose, can serve as emergency contraception — at legal risk if they continue to take their prescribed medicine in a state which bans contraceptives?

Though these are somewhat hypothetical matters at the moment — Griswold and Baird are both still in effect, and, Justice Thomas’ longstanding objection to substantive due process cases like Griswold notwithstanding, is likely to remain so for the foreseeable future — conservative politicians, especially those representing states where contraceptives will indefinitely remain legal like Nevada, should give pause before they grant other state governments yet another reason to violate the privacy of their constituents. As Amodei is already undoubtedly aware, the doctrine of civil asset forfeiture, which lets local and state police seize passing travelers’ assets without charging anyone with a crime, has already caused serious issues within the region he represents. Additionally, law enforcement agencies in other states, such as New Mexico, have been caught performing multiple unnecessary anal cavity searches on individuals they erroneously believed might be concealing drugs. 

Given how expansive state and local law enforcement powers have grown through the course of the War on Drugs, imagine if the same law enforcement agencies were empowered to search for oral contraceptives as well — or if they were empowered to remove an “illegal abortifacient” from an unlucky Nevadan recovering in an emergency room in another state.

Once again, just as the Respect for Marriage Act rightfully legislates important and existing protections of rights enjoyed by Nevadans and Americans more generally instead of leaving those matters to judicial chance, the Right to Contraception Act rightfully legislates important and existing protections for Nevadans who travel with contraceptives, whether those contraceptives are installed in their bodies or contained safely within their luggage.

Since Amodei represents Nevadans — including me, by the way — it would have been nice if he considered any of that before he voted no on both.

David Colborne ran for office twice and served on the executive committees for his state and county Libertarian Party chapters. He is now an IT manager, a registered nonpartisan voter, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Twitter @DavidColborne or email him at [email protected].

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