In six weeks, House Speaker Nancy Pelosi will relinquish the gavel. From that moment until January 2025 (and possibly beyond), passage of new legislation will be nearly impossible. Accordingly, between now and the holiday recess, Congress has a packed agenda. At or near the top of the list should be passage of amendments to the Electoral Count Act, funding for items that Republicans want to slash, and raising, suspending, or (best of all) repealing the debt ceiling, which the Republican majority could otherwise try to use to blackmail President Biden into accepting cuts to entitlement spending via a credible threat to crash the global economy.
The to-do list for the lame-duck session of Congress also includes social legislation, especially the Respect for Marriage Act (RMA), which passed the House in July. Last week, 62 senators voted for cloture on the RMA—that is, the bill overcame a possible filibuster. Accordingly, its passage seems assured. All that remains is a merits vote (which requires a mere 50 senators) and then a second vote in the House of Representatives (because the Senate amended the RMA).
Readers might be wondering why the RMA—which would codify a federal right to same-sex marriage—is needed. After all, in the 2015 case of Obergefell v. Hodges, the Supreme Court recognized that right under the Constitution.
The short answer is that the Court’s willingness to overrule other liberal precedents—especially its abandonment of a right to abortion in June in Dobbs v. Jackson Women’s Health Org.—places other constitutional rights at risk as well.
Why the RMA is a Potentially Useful Hedge
In overruling Roe v. Wade and other abortion precedents, Justice Samuel Alito, speaking for the Dobbs majority, wrote that “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Why, then, does a majority of each house of Congress think it necessary to codify marriage equality? For at least three reasons.
First, Justice Alito’s reassurance did not speak for every member of the Dobbs majority. In a concurring opinion, Justice Clarence Thomas said that in future cases the Court should apply the reasoning of the Dobbs opinion to “reconsider all of this Court’s substantive due process precedents, including . . . Obergefell.”
Second, Justice Thomas was correct that the logic of Dobbs threatens Obergefell. The Alito majority opinion repeatedly states that abortion differs from other unenumerated rights recognized under the rubric of substantive due process because only abortion involves the destruction of a human life or potential life. Yet that distinction is a non sequitur. The heart of the Dobbs opinion argues that abortion is not a constitutional right because it is not deeply rooted in history and tradition. The same is true of same-sex marriage. Indeed, for that reason, the Justices in the Dobbs majority who were on the Court in 2015—Roberts, Thomas, and Alito—all dissented in Obergefell. Applying the adage that actions speak louder than words, Congress has some reason to doubt the assurances in the Dobbs opinion.
Third, even if a majority of the Supreme Court has no current plan to overrule Obergefell, that could change with new appointments. The right to abortion stood for nearly fifty years. Then Mitch McConnell and Donald Trump happened, and it was gone. A future Republican President could appoint new Justices who read the Dobbs opinion as Justice Thomas does.
Accordingly, Congress has sound reasons to take a better-safe-than-sorry approach to marriage equality by passing the RMA.
What the RMA Does
The RMA has three key elements. First, it repeals the Defense of Marriage Act (DOMA), which authorized states that did not recognize same-sex marriage to deny recognition to such marriages celebrated in other states and also defined marriage for purposes of federal law as between a man and a woman, even if a same-sex couple was married and resided in a state that recognized their marriage as lawful. To be sure, in 2013, in United States v. Windsor, the Supreme Court held the federal definition provision of DOMA unconstitutional, but Congress could reasonably worry that a future Court that is willing to overrule Obergefell would also overrule Windsor.
Second, the RMA flips the interstate aspect of DOMA by requiring states to recognize same-sex marriages that are celebrated in states that have marriage equality. Suppose that the Supreme Court were to overrule Obergefell and a married same-sex couple were to move from New York (which recognized same-sex marriage in 2011) to Alabama (which would likely seek to enforce its state constitutional ban adopted in 2006). The RMA would obligate Alabama to give full faith and credit (i.e., to recognize) the marriage celebrated in New York.
Third, a provision that was added to the RMA in the Senate version of the bill permits “nonprofit religious organizations” to decline “to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” A related provision disclaims any diminution or abrogation of religious liberty, although that provision appears duplicative, given that the Religious Freedom Restoration Act provides such protection absent an express disclaimer in new legislation, and the RMA contains no such disclaimer.
Readers might wonder why the RMA does not go further. Why doesn’t it affirmatively require states to recognize same-sex marriages regardless of where they are celebrated? The RMA does not provide an answer, but presumably the reason is that Congress lacks the affirmative power to regulate marriage directly. Although a few aspects of family law fall within the scope of Congress’s power to regulate interstate commerce, one would expect the Supreme Court to hold that the definition of marriage is among the powers reserved to the states by the Tenth Amendment.
Accordingly, the RMA does not fully duplicate Obergefell. Today, same-sex couples can marry in any state or territory of the United States. If Congress enacts the RMA and the Supreme Court subsequently overrules Obergefell, same-sex couples residing in states that do not of their own accord recognize the legality of their marriages would have to go to the trouble and expense of traveling to a state that does in order to receive full recognition in their home state. (Whether same-sex couples who are already married in such states would have to remarry in another state would depend on whether such states would be so cruel as to attempt to apply their bans retroactively and, if so, whether the affected couples might have a valid legal objection to being stripped of their married status.)
If SCOTUS Overrules Obergefell, Will it Uphold the RMA?
Meanwhile, thinking about the possibility of the Supreme Court overruling Obergefell raises the question whether the Court would uphold the RMA. With respect to the portion of the RMA that incorporates state marriage law into federal law, the answer should pretty clearly be yes. In piggybacking on state law, the RMA essentially restores federal law to its pre-DOMA condition. Congress has wide latitude to define terms for purposes of federal law, and incorporating state definitions is a standard approach.
What about the interstate aspect of the RMA? In a post-Obergefell world, would the Supreme Court uphold the RMA’s provision requiring states to recognize out-of-state same-sex marriages? It ought to. Article IV, Section 1 of the Constitution requires states to give “[f]ull faith and credit . . . to the public acts, records, and judicial proceedings of every other state.” It goes on to say that “Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
Indeed, one might think that even in the absence of the RMA, the Full Faith and Credit Clause requires every state to recognize marriages celebrated in other states. However, case law in the state courts has long recognized a “public policy” exception under which states need not recognize all out-of-state marital decrees. There are limits on a state’s ability to deny such recognition, but most of the cases establishing such limits involve divorce rather than marriage. Failure to recognize as valid an out-of-state divorce could render a subsequent marriage bigamous and has consequences for children as well. By contrast, state courts have generally been given freer rein to deny recognition to marriages celebrated out of state, especially when state residents traveled to another state merely as a means of circumventing the state’s marriage laws.
Accordingly, most observers have assumed that, in the absence of a constitutional right to same-sex marriage, states would be free to deny recognition to same-sex marriages performed out of state, notwithstanding the seemingly absolute language of the Full Faith and Credit Clause. To be sure, no Supreme Court case squarely endorses the public policy exception as applied to out-of-state marriages, and at least one scholar has challenged the conventional wisdom that the Constitution permits such an exception. Still, it is likely if not certain that if the Supreme Court were to overrule Obergefell, and in the absence of the RMA, the Court would allow states that forbid same-sex marriages to deny recognition to such marriages celebrated out of state.
The RMA would thus provide a hedge against an aggressive Supreme Court. Would it succeed? It should. After all, that second sentence of the Full Faith and Credit Clause authorizes Congress to prescribe not only the manner by which states recognize the acts, records, and judgments of sister states but also “the effect thereof.” As a Stanford Law Review article that Justice Antonin Scalia invoked in his Windsor dissent notes, long before DOMA, Congress had exercised that power in various contexts to provide for nationwide choice-of-law rules.
Nonetheless, a future reactionary Court willing to overrule Obergefell and Windsor might also be willing to disregard or disingenuously read the Full Faith and Credit Clause to invalidate the RMA’s interstate recognition provision. But then, as James Madison famously observed with respect to the Constitution itself, law’s “parchment barriers” can only do so much to constrain power. The RMA cannot guarantee marriage equality for the long run, but for now, it seems like a sensible, if limited, hedge against the possibility of an even more reactionary Supreme Court.