The Volokh Conspiracy

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Federalism and the Respect for Marriage Act

Does the bipartisan act protecting same-sex marriage run afoul of constitutional federalism principles? The answer is definitely not with respect to one of its provisions, and probably not with respect to the other.


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:

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 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: