Yesterday, the House of Representatives passed the Respect for Marriage Act. The broad bipartisan support it got (47 Republicans joining all the Democrats) suggests it might well pass the Senate, too. The bill is primarily motivated by fears that the Supreme Court's reversal of Roe v. Wade in the Dobbs case also presages a reversal of Obergefell v. Hodges, the 2015 ruling striking down state laws barring same-sex marriage. For reasons I summarized here, I think that is highly unlikely to happen. See also co-blogger Dale Carpenter's analysis of that issue.
But let's assume Dale and I are wrong, and the Court does indeed go on to overrule Obergefell. In that event, the Respect for Marriage Act might face constitutional challenges on the grounds that it exceeds the scope of Congress' authority and intrudes into areas left to the control of state governments. Indeed, Dale and I (along with several other federalism scholars, including VC bloggers Randy Barnett and Jonathan Adler) filed an amicus brief in Windsor v. United States (2013) arguing that the earlier Defense of Marriage Act (DOMA) - which, enacted a federal definition of marriage limited to opposite-sex couples - exceeded the scope of congressional power. The Court's majority opinion in Windsor prominently cited our brief, though it adopted our argument only in part.
Could not similar federalism objections be successfully raised against the Respect for Marriage Act? It's an entirely legitimate question. The answer is "definitely not" with respect to the act's provisions that apply to the definition of marriage used in federal law, and "probably not" when it comes to the provision requiring states to recognize same-sex marriages contracted in other states.
Here is the key provision of Section 4 of the Act, establishing a new definition of marriage with respect to eligibility for various federal tax benefits and programs:
(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.
Our federalism objection to Section 3 of DOMA was that it sought to use federal power to push for a uniform nationwide definition of marriage, thereby undermining the autonomy of the states, and pursuing an objective beyond the enumerated powers of Congress. By contrast, Section 4 of the Respect for Marriage Act does the exact opposite. It gives total deference to states' definition of marriage. If state law says that a given relationship qualifies as a marriage, that's good enough for Uncle Sam! Call it state autonomy on steroids.
If anything, Section 4 could be criticized for deferring to the states too much. Imagine if Utah or some other state decides to grant legal recognition to polygamous marriages. Section 4 would require the federal government to do the same. If a person has multiple spouses under state law, all of them could potentially be eligible for various federal tax deductions and other benefits that are reserved for married people (though they would also all be subject to the marriage "tax penalty"). Such hypotheticals don't much bother me. But I could imagine social conservatives and some feminists worrying about them (the latter because they might fear legal recognition of polygamy would lead to the subordination of women). Regardless, this slippery slope concern is is not a constitutional federalism problem. It's a matter of policy.
It's worth emphasizing that Section 4 avoids federalism problems in large part because it does not actually compel states to recognize same-sex marriages, or indeed any other kind of marriages. It just says that if a state does recognize them, the federal government will, as well. In that respect, it falls short of offering the degree of protection for same-sex marriage that currently exists under Obergefell. It's also worth noting that state laws banning same-sex marriage can violate individual constitutional rights, even if the federal government lacks any general power to legislate on the definition of marriage. There is no contradiction between these two positions and I in fact hold both.
The federalism implications of the other key provision of the Respect for Marriage Act are more debatable. Section 3 requires states to recognize various types of marriages contracted in other jurisdictions, even if it doesn't itself allow people to enter into them:
(a) …. 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.
Unlike Section 4, this provision does require state governments to recognize some types of marriages they are opposed to. The ban on discrimination based on race, ethnicity, or national origin is easily justified based on Congress' powers under Section 5 of the Fourteenth Amendment, which allows "appropriate" legislation to enforce the antidiscrimination provisions of that same Amendment. Racial and ethnic discrimination in marriage law is unconstitutional under the Supreme Court's ruling in Loving v. Virginia (1967). Despite some scaremongering to the contrary, there is zero chance the Court will overrule Loving. No justice - including Clarence Thomas, who has explicitly defended Loving - has any desire to do that.
But if the Court overrules Obergefell, the requirement that states not discriminate on the basis of "sex" in recognizing out-of-state marriages might be challenged on federalism grounds. It then probably could not be justified based on Section 5. But it might well stand as an exercise of Congress' power to enforce the Full Faith and Credit Clause, which states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
The precise scope of states' obligations and Congress' powers under FFC is a matter of longstanding debate. VC co-blogger Steve Sachs, a leading expert on this subject argues that states have broad discretion to refuse to recognize out-of-state marriages in the absence of federal law to the contrary, but that Congress also has broad power to compel such recognition. Legal scholar Steve Sanders has argued that states must recognize out-of-state marriages even if there is no specific congressional legislation requiring them to do so.
This is an area of some uncertainty. But, on balance, I think it likely that Congress can require recognition of marriages contracted in other states, even if states would not be compelled to grant it otherwise. As Sanders notes, marriage and child custody are precisely the kinds of important legal relationships where certainty and stability are especially important. Achieving that kind of certainty and stability is one of the key reasons why the Full Faith and Credit Clause was inserted into the Constitution to begin with. And FFC also gives Congress specific power to enact "general Laws" defining and enforcing the scope of state obligations under the Clause. It doesn't have to be inferred from ultra-broad readings of other congressional powers. There is therefore a solid defense of this provision from the standpoint of textualism and originalism, the kinds of methodologies that appeal to the conservative majority on the Court.
That said, I am no expert on full faith and credit. So I am much less sure about my conclusion on this part of the Act than Section 4. In the unlikely event that Obergefell gets overruled in the aftermath of Congress passing the Respect for Marriage Act, the full faith and credit issue might well lead to litigation.
UPDATE: It's worth noting that the Respect for Marriage Act includes a severability provision. Thus if courts were to invalidate Section 3, Section 4 will be unaffected (and vice versa).
UPDATE #2: Prof. Steve Sanders has sent me comments on the full faith and credit issue raised in this post, which I have posted (with his permission) here.
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