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Senate finally ready to protect marriage equality [1]
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Date: 2022-11-15
This law would “preempt such backsliding by wiping DOMA off the books for good, declaring that same-sex couples must receive every right and privilege of marriage granted by the federal government.”
The other part of the bill requires that every state must recognize marriages licensed in other states. What it doesn’t require, as the Supreme Court’s 2015 Obergefell decision does, is that every state must license same-sex marriages. So a couple would need to travel out of their home state, if they’re in one of the dozen or so with marriage bans on the books, to get married. Their home state would, however, have to recognize and extend the benefits of their union.
That’s a recognition of long-standing Supreme Court rulings that the federal government cannot force or “commandeer” states to pass state statutes or enforce federal laws. The federal government can do things like withhold certain funding if states don’t pass laws; that’s what they did in 1984, when they set a minimum legal drinking age of 21, tying federal highway funds to states’ passing that law. But, writes Stern, “If Congress compelled states to license same-sex marriages, the judiciary would invalidate the law as a violation of this anti-commandeering doctrine.”
A Supreme Court that would be willing to toss the precedent of Obergefell would be willing to overturn a federal respect for marriage law. That’s the unfortunate reality that has resulted in this part of the law. If the Court overturns Obergefell—and only in that instance, it’s important to point out—then states could refuse to grant these marriage licenses. But the wouldn’t be able to discriminate against resident couples who were legally married in other states. That would stand up to Court scrutiny, Stern argues, “because the Constitution’s full faith and credit clause gives Congress the power to make states grant ‘full faith and credit’ to the ‘public acts, records, and judicial proceedings’ of other states.” The Court isn’t likely to mess with that.
Beyond that, the RFMA also protects any “right or claim arising from such a marriage.” In other words, children—whether through adoption or conception with a donor or surrogacy. The law would require that state’s have to honor couples’ parentage of children born into the marriage. Because same-sex adoption has become yet another cultural flashpoint from the right, protecting the rights of parents is critical.
In terms of religious liberty stuff, and there’s a lot of it in the bill, it just reiterates the status quo, and to make certain members of the Republican conference happy, it says specifically that by ending the definition of marriage in DOMA—one man and one woman—Congress isn’t saying that polygamous marriages are okay.
The bill is getting support of everyone from the Church of Jesus Christ of Latter-day Saints to this guy:
x At Apple, we believe everyone should have the freedom to marry the person they love. We’re proud to support the bipartisan Respect for Marriage Act and strongly urge the U.S. Senate to act on behalf of families across the nation. — Tim Cook (@tim_cook) November 15, 2022
Could it be better? Yes, it could. It could skip the whole part about putting the right of states to discriminate by refusing marriage licenses into federal law. That stings, even if it’s a reflection of the reality in which we live with this Supreme Court. As does the fact that Senate Democrats chickened out on putting this bill on the floor before the election, forcing Republicans to show their bigoted hands. The protections it does extend, however, are critical.
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