The Respect for Marriage Act Is Now Law

 

But is it Constitutional, and does it matter if it is?

On Tuesday President Biden signed the Respect for Marriage Act that was passed by Congress last week with bipartisan support. Although the goals of this legislation are laudable, it’s a rather strange bill in that it doesn’t change anything. At least for the moment. Its two primary provisions are revoking the Defense of Marriage Act (DOMA) which defined marriage as being between one man and one woman, and requiring states to recognize legal marriages from other states, even if that state wouldn’t allow that marriage. However, based on previous Supreme Court rulings, interracial and same-sex marriages are already protected under the Constitution. Also, DOMA was already ruled unconstitutional in 2012. That means this new law doesn’t change anyone’s right to marry who they want and have that marriage legally recognized in every state. So why did they go to so much effort to pass this act?

To answer that question, we have to look at decades of Supreme Court decisions involving individual rights and the government’s authority to limit those rights. As daunting as that might sound, fortunately we only need to look at a few landmark decisions to get the basic story.

The History

The legal battle over abortion and the 1973 Supreme Court’s decision in Roe v. Wade has been fought in the courts for decades. The first election I could vote in was 1988 which coincides with the rise of abortion as a hot political issue. In the wake of Ronald Reagan, a new generation of right-wing politicians such as Pat Buchanan and Ralph Reed and his Christian Coalition began making abortion a touchstone issue for conservatives. Living in Wichita, Ks I had a front row seat for this as the anti-abortion group Operation Rescue set their sights on Wichita abortion provider George Tiller. They dubbed 1991 “The Summer of Mercy” and Wichita became the subject of national news with daily abortion protests for months.

Despite all the pro-life efforts, in 1992 the Supreme Court upheld abortion rights in the Planned Parenthood v. Casey decision. At first this seemed to take the steam out of the pro-life movement, however in reality it only led to a change in tactics. Rather than attempting a direct assault on Roe, Republican lawmakers in conservative states began attempting to chip away at abortion rights. They did this by restricting funding for abortion services, increasing regulatory requirement for abortion clinics, instituting waiting periods, and most importantly, putting time limits on when abortions could take place.

Happening concurrently with the battle for abortion rights was the legal fight over LGTBQ rights. On the surface they seem like two unrelated issues. However, the political sides on these two issues were largely the same and they both boiled down to the same question of the state’s ability to regulate private decisions. Consistent with the court’s rulings on abortion, sodomy laws were struck down in the 1998 Lawrence v. Texas decision. This decision legalized homosexual relations and naturally led to questioning of prohibitions on same sex marriages. Finally, in 2015 the Supreme Court ruled in Obergefell v. Hodges that prohibitions on same sex marriages were unconstitutional, legalizing these marriages across the country.

Precedent

The thing about Supreme Court decisions is they don’t happen in isolation. Each of these decisions drew on a wide range of previous decisions that set a Constitutional precedent. Some examples include the 1965 decision that legalized access to birth control, and the 1969 decision allowing possession of pornography in your home. Perhaps most important to this discussion is the 1967 decision in Loving v. Virginia that overturned laws banning interracial marriages. This is why it’s so unusual to see Supreme Court decisions overturned, they’re meticulously built on the backs of decades of prior decisions.

This is one of the reasons the Dobbs v. Jackson decision in June raised so much concern among Constitutional law experts. This decision overturned the Constitutional protections for a woman’s right to obtain an abortion that Roe v. Wade had guaranteed. Although this decision is specific to abortion, the Roe decision is one of the linchpins of so many other civil rights decisions.

The Majority’s Opinion

Even more alarming than the overturning of a fundamental right Americans have had for nearly 50 years, was some of the reasoning behind it. Justice Alito, writing for the majority, reasoned that any right not specifically mentioned in the Constitution must be “deeply rooted in this nation’s history and tradition.” If a right wasn’t recognized for a significant portion of our history, it fails this test. For most of our history there was no recognized Constitutional right to abortion, therefore it’s not deeply rooted and not a fundamental Constitutionally protected right.

This set off alarm bells all over the place. This reasoning could also apply to all the rights previously mentioned in this article as well as others. Can the military exclude homosexuals? Can a company decide that a particular position is only suitable for male employees? Neither of these examples of discrimination have a deeply rooted history in America of being illegal. In 1993 I had to certify I wasn’t a homosexual in order to enlist in the Air Force. The idea of a company hiring a woman mechanic in the 1960s was laughable.

This is the genesis of the Respect for Marriage Act. If the court follows this same logic and overturns the Loving or Obergefell decisions removing protections from interracial and/or same-sex marriages, they’ll now still have some protection at the federal level. There’s a lot to unpack here.

Is it Constitutional?

Perhaps the most important thing to understand is what the Respect for Marriage Act doesn’t do. It doesn’t mandate legal same-sex marriages in all 50 states. States regulate marriages. Any attempt for the Federal government to regulate what constitutes a legal marriage would face a serious legal challenge they would likely lose. Rather, it states that if one state issues a marriage license then every state must recognize it as legally binding. The Constitutionality of this is uncertain. It’s based on the Constitution’s Full Faith and Credit Clause which specifies that states must recognize public acts, records, and judicial proceedings from other states. That’s why states accept adoptions, divorce degrees, and driver’s licenses across state lines.

There are limits to Full Faith and Credit Clause though. Legally purchasing marijana in one state doesn’t allow you to take it to a state that doesn’t permit it. Likewise, a concealed weapon permit from one state won’t allow you to carry a concealed weapon in a state that prohibits it. It seems most legal experts think it will hold up to legal scrutiny, but it’s not entirely clear.

Another potential legal problem with this act is an amendment Republican supporters insisted on which clarified that a marriage is between two people. One of the reasons DOMA was struck down by the Supreme Court was that marriage is a state regulated institution. Having contradictory state and federal laws concerning marriage created an untenable situation. The Respect for Marriage Act avoid this problem on same-sex marriages by deferring to state laws. However, in prohibiting polygamous marriages it’s running into the same problem as DOMA. Currently no state allows polygamy, so it wouldn’t be an immediate problem. But if a state was to legalize polygamy it would present the courts with a sticky legal issue to rule on.

All these issues are only theoretical as long as the Loving and Obergefell decisions are the law of the land. As long as those two decisions aren’t overturned, this whole bill is basically a bunch of politicians patting themselves on the back with no practical effect for the American people. So how likely is it that we’ll see more of the individual rights that the courts have ruled are Constitutionally protected over the last sixty years thrown in the dustbin of history. Simply put, not very likely.

Flawed Logic

Alito, writing for the majority, states very clearly that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” He goes at length to try and differentiate abortion from other civil rights decisions because abortion destroys “potential life.” At the same time he tries to claim they are not granting any rights to prenatal life. Of course, he seems unconcerned for the right of the pregnant woman to have autonomy over her own body. The only way this decision makes any logical sense is if you apply this same “deeply rooted” standard to all these civil rights decisions over the last six decades or you declare fetuses have the same rights as people who are born.

Alito knew that throwing all these civil right decisions into doubt would seriously undermine the court’s legitimacy and cause a societal upheaval he didn’t want to be responsible for. Likewise, he knew granting personhood to the unborn would have far reaching consequences he was unprepared to cause. So instead, the court issued an opinion that it did its best to justify, but ultimately defies logic. They did this because it wasn’t an opinion based on law, precedent, or legal theory, but rather was a political decision. Previous Republican Presidents nominated the majority of the court specifically because they were pro-life. When they had the opportunity to legislate from the bench, they didn’t flinch.

Are LGTBQ Rights Safe? Maybe

It seems likely the advances in civil rights the court has ruled on are safe for the time being. However, that’s also not a certainty. Several of the current justices downplayed the possibility of overturning Roe during their confirmation hearings. Alito likewise downplayed overturning a slew of additional decisions. Importantly though, he also didn’t shut the door to reversing more long-established civil rights. Only Justice Clarence Thomas seemed to acknowledge the logical conclusion that the reasoning in this decision could apply to a number of other decisions.

With all this said, is the Respect for Marriage Act a worthy piece of legislation? I think it is. Given this court’s composition and history, I don’t think we should make any assumptions that any prior decisions are safe. This act is also a clear statement that in America, we consider everyone’s ability to marry who they want to be a fundamental right. My only concern is the court could look at this law as political cover to overturn same-sex marriages. But Congress shouldn’t attempt to play 3-dimensional chess with the Supreme Court. They wrote a good law and got bipartisan support for it. Let’s celebrate the victory and hope it’s never needed.

Additional Reading:

Federalism and the Respect for Marriage Act (reason.com)

Respect for Marriage Act: What the bill does and doesn’t do (axios.com)