The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Respect for Marriage Act passed the House by an unexpectedly large margin. And there is movement afoot to see if the bill will garner ten Republican votes to break a Senate filibuster. Ilya addressed the bill here. I'd like to add five more thoughts.
First, one of the most effective and pervasive criticisms of Dobbs is that Obergefell is next. If this bill passes, that argument largely goes away. Granted, the bill does not actually require a state to issue a gay marriage license--only that a state must recognize a gay marriage performed out of state. As a result, gay couples might have to obtain licenses from other states. But that burden is minimal. Indeed, it would be fairly simple to apply for a marriage license out of state, and the ceremony can be performed over Zoom.
Second, the fact that this bill passed the House by such a wide margin illustrates why the Obergefell-is-next argument never worked: there is no national movement to reverse gay marriage. Unlike Roe and Casey, Obergefell was largely accepted without a backlash. Now, there is more than 70% support for gay marriage. There is no march on Washington to reverse Obergefell, like there has been for abortion. Justice Alito was correct in saying this issue has been settled. Obergefell has proven workable in every regard. On the plus side for conservatives, enacting this bill would undermine the non-stop attacks on Dobbs. I'm sure leader McConnell recognizes this fact: passing this bill reduces the need for Court "reform."
Third, so far I've presumed that Section 3 of the bill is constitutional. Is it? The bill provides, in part:
This provision can be tested in one of two ways. First, a state actor could decline to give recognition to a marriage license issued from out of state. That action would trigger a suit by the couple whose marriage was not recognized, or by the United States Attorney General. But that state official would be going rogue. He would not receive qualified immunity--his actions violate clearly established law. And a judge could hold him in contempt if he flouts a court order. The second path is more likely, a state would sue the United States, arguing that Section 3 is unconstitutional. Ring up one more United States v. Texas. Still, at present, every state is required to recognize same-sex marriage licenses under Obergefell. Standing would have to be creative. That is, the federal law inflicts some injury on the state that goes above and beyond what the Supreme Court required.
I have no interest in weighing in on the Full Faith and Credit debate, with Steve Sachs on one side and Steve Sanders on the other side. The Full Faith and Credit Clause is like the right to travel: an aspect on the Constitution on which there are few actual experts, but on which many people will suddenly profess expertise. I have no clue what the answer is here.
Instead, fourth, I want to turn to Section 5 of the Fourteenth Amendment. Now, the bill did not invoke Congress's enforcement powers. The bill is expressly couched in terms of the Full Faith & Credit Clause. But could Congress have relied on Section 5 here? The analysis is a bit involved. Walk with me.
I agree with Ilya that the bill would be valid with regard to interracial marriage. Here, Congress could claim that it is enforcing Loving v. Virginia--and to be on the safe side, the Equal Protection component of that case, as Dobbs cast doubt on the substantive due process component. But the bill also refers to denying recognition on the "basis of the sex," not on the "basis of sexual orientation." Hello Bostock. According to Justice Gorsuch, as well as Chief Justice Roberts, it is impossible to discriminate against a person on the basis of sexual orientation without also discriminating against that person on the basis of sex. Now, Bostock was not a constitutional ruling. Here, Justice Gorsuch was interpreting a statute based on decades of non-textualist precedents by Justice Brennan and his ilk.
It is possible that Gorsuch and the Chief Justice would view the Equal Protection Clause in the same fashion as Title VII. If so, Justice O'Connor's Equal Protection in Lawrence v. Texas would be correct, albeit for very different reasons. Indeed, all discrimination on the basis of sexual orientation, and presumably gender identity, would be subject to the same heightened intermediate scrutiny employed in United States v. Virginia. To date, the Court has not gone along with that analysis. And I'm not sure that a text-and-history analysis of the Fourteenth Amendment could bear such a conclusion. But that argument is viable.
Fifth, is the Respect for Marriage Act an intrusion on federalism? Or, stated differently, is it a "proper" exercise of federal power? I'll take Windsor as the starting point of the analysis. Think way, way back to 2013 when we still cared what Justice Kennedy thought. (Those were confusing times.) The Windsor decision explained that the Defense of Marriage Act was infected by unconstitutional animus (remember animus!?). And those who enacted the bill sought to deny dignity (remember dignity?!) to gay and lesbian couples. Here, Justice Kennedy invoked the line of cases that stretched from Romer to Cleburne to Moreno (remember Moreno!?). That dignity-denying-animus violated the Equal Protection component of the Fifth Amendment, or something like that. The specifics were never very important to Justice Kennedy. (Randy and I removed Windsor from the 4th edition of the casebook, and the 2nd edition of 100 Cases, as its vitality is quite low.)
Back to the Future. The Respect for Marriage Act would (under the Kennedy guise) not be infected by unconstitutional animus. Rather, the bill would preserve the dignity afforded by marriage licenses for same-sex couples. Thus, I do not see any animus-problems here. But there are real federalism issues at play. Still, the bill critically does not require states to issue the licenses, it only concerns recognition.
My thoughts here, as always, are tentative.