Rcently the House of Representatives passed the “Respect for Marriage Act” – H.R.8404. And the bill was moved through under fears the Supreme Court could revisit and overturn Obergefelle.
This fear comes from Justice Thomas’s concurrence where he wants to revisit the entire concept of substantive due process and determine whether any cases decided on that could instead be upheld under the Privileges and Immunities Clause. The late Justice Scalia was also no friend to substantive due process and the incorporation doctrine.
But we’re not going to get into that here.
Instead let’s get into the bill itself since it does NOT do what proponents think. Instead it’s nothing more than a repeal and replace for the Defense of Marriage Act of 1996.
Repeal and replace the Defense of Marriage Act of 1996
The Defense of Marriage Act was part of what was ruled unconstitutional in the Obergefelle decision. So if it was ruled unconstitutional, why is Congress moving to repeal it? Because ruling a law unconstitutional doesn’t remove it from the books. So if Obergefelle is overturned in full, the Defense of Marriage Act is again enforceable unless repealed.
The Defense of Marriage Act made it so gay marriages enacted in one State were not automatically recognized in another. The statute in question is 28 USC § 1738C:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
It also created the Federal definition of “marriage” and “spouse” at 1 USC § 7:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
So while rendered unenforceable by Obergefelle, they are still on the books. Overturn Obergefelle and they become the law of the land again. So the Democrats in Congress are wanting solidify the Obergefelle decision as best they can.
The Act does this by replacing §1738C:
(a) IN GENERAL.—No person acting under color of State law may deny—
(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or
(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.
(b) ENFORCEMENT BY ATTORNEY GENERAL.—The Attorney General may bring a civil action in the appropriate United States district court against any person who violates subsection (a) for declaratory and injunctive relief.
(c) PRIVATE RIGHT OF ACTION.—Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief.
(d) STATE DEFINED.—In this section, the term ‘State’ has the meaning given such term under section 7 of title 1.
Given the language of this bill, it makes me wonder if they fear the Supreme Court will revisit and overrule Loving v. Virginia. Anyway… the bill also replaces 1 USC §7 – though the bill says it amends it. Hopefully someone in the Senate will catch that.
(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
(c) For purposes of subsection (a), in determining whether a marriage is valid in a State or the place where entered into, if outside of any State, only the law of the jurisdiction applicable at the time the marriage was entered into may be considered.
And all of this is fully within Congress’s powers under the Full Faith and Credit Clause in Article IV of the Constitution.
What’s missing?
Pretty straightforward bill. I really wish most of what Congress passed is this short and to the point. But there’s one significant omission from this bill, and it’s missing because Congress doesn’t have any power over this: making gay marriage universal.
As such this bill doesn’t “codify” gay marriage in any way. Congress cannot force States to allow gay marriage by statute. Doing so would violate State sovereignty. Congress has no power over the actual solemnization of marriages in the United States. To grant that power, the Constitution must be amended.
But it’s not necessary. Since interstate recognition of gay marriages is enough.
What if Obergefelle is overruled?
So the big question is what would happen if Obergefelle is overruled. Do all gay marriages suddenly become invalid overnight? No. In his concurrence in Dobbs, Kavanaugh pointed out how the ex post facto provision of the Constitution works in mentioning that overturning Roe doesn’t mean every woman who has ever had an abortion and every physician who has ever performed one is now exposed to risk of prosecution.
The same would be with Obergefelle. Even if they overruled it tomorrow, all existing gay marriages would still be valid in the State in which they were solemnized. It’s future attempts to obtain licenses for a gay marriage that would be in jeopardy.
But if the “Respect for Marriage Act” is successfully enacted, that would mean all States must recognize any gay marriage lawfully performed in the United States. This would mean that any homosexual couples who want to get married can go to States where they can be lawfully performed and they’ll be recognized across the board.
The only way for that to not be the case would be if the Federal Courts ruled that marriages are not “public Acts” under the Constitution. But I don’t see that happening.
