LGBT MARRIAGE RIGHTS IN THE NEW TRUMP ERA, PART 2

In 2022, Congress passed the Respect for Marriage Act (RFMA), which provided legislative protection to marriage rights, in addition to the protections afforded by the Supreme Court decisions discussed in my last blog post. Click here to read part 1

The RFMA legislatively codifies three Supreme Court decisions, Loving (1967), which required nationwide recognition of interracial marriages, Windsor (2013), which required federal recognition of same-sex marriages (SSM), and Obergefell (2015), which required all states to both recognize SSM from other jurisdictions and allow them within their borders (similar to Loving’s treatment of interracial marriage).

The current court has been remaking American law by frequently overturning precedents that were thought to be well settled — the Dobbs decision that overturned Roe v. Wade is only the most conspicuous and tumultuous example.  Even the current Supreme Court, let alone the even more activist federal courts that may result from the second Trump administration we can now expect, could conceivably do things that until now were unimaginable, like repealing Loving.  This concern appears to have been the motivation for the RFMA.  Notably, the RFMA passed with large majorities in both houses of a very divided Congress.  So that is a good indicator of solid support for the marriage laws as we currently know them, and hopefully the Supreme Court will take its cue from that.

But I think we are in very unpredictable times, so all possibilities must be considered.  If the Supreme Court were to reconsider marriage rights, Obergefell is the lowest-hanging fruit — its legal reasoning is widely regarded as thin, and a tide of states-rights sentiment could easily bring challenges to it; the arguments would be very similar to those that overturned Roe. 

The RFMA aims to protect against this by requiring all states to recognize SSM.  But if Obergefell were overturned, the RFMA would not require all states to allow SSM within their borders.  So, if you lived in Louisiana, the state would be required to treat you as a married couple but would not be required to issue a marriage license to you.  To get married, you would have to go to a state that allows it – the geography of marriage would be much like the geography of abortion. 

So, then the question is whether the RFMA is vulnerable to constitutional challenge.  The issue there is that it's a federal law telling the states what to do.  The constitution generally does not allow that, which is why the RFMA doesn’t even attempt to dictate that all states must allow SSM in their borders.  The requirement that all states recognize SSM from other jurisdictions is based on Congress’s power to elaborate on the Constitution’s Article IV requirement that all states extend to one another “full faith and credit” to the judgments and legal determinations of other states.  This is a part of constitutional law that hasn’t been as thoroughly developed as others (there have not been a lot of cases in which it has been analyzed and discussed), so there are fewer guiding principles.  It’s quite clear that Congress does have this power, but it’s equally clear that marriage has always been defined by the states.  So it would take an activist Court to overturn the RFMA on the ground that Congress is exceeding its power under Article IV – that would be a novel interpretation of Article IV of the Constitution.  But we have an activist Court.  And a Court that has already ruled that no gun control law is valid today unless it existed in 1791 when the Second Amendment was enacted, could conceivably conjure up some historical argument about the states’ rights to define marriage somehow predating and superseding Article IV.

All of that said, there is no possible question that Congress has the power to determine that SSM is recognized for all federal purposes (taxes, immigration, etc.), so that aspect of SMM is now protected both by the Windsor decision and the RFMA.  If somehow the Windsor decision were overturned (much less likely than overturning Obergefell, since it is based on more solid legal reasoning), then the RFMA would stand alone as the protection of SSM.  The RFMA could be repealed by any Congress that could muster the necessary majority.  But as tumultuous as our politics are now, that actually seems to be off the table for now.

So: if Obergefell were overturned, then the RFMA would still allow all SSM to be recognized in all states, though couples would have to travel to friendly states to have their weddings.  If the state-recognition part of the RFMA were overturned, then SSM would be recognized only by friendly states and by the federal government.  That seems unlikely, and even if it were to happen, it seems most likely that federal recognition will endure.