OVERTURNING ROE V. WADE - IS SAME-SEX MARRIAGE NEXT?
Ever since the Supreme Court overturned Roe v. Wade a few weeks ago, questions have arisen about many other rights that have been established by the Supreme Court over the past fifty years, because of legal reasoning that may be similar to the principles that were overturned in this new decision. Same-sex marriage is one of the issues that has aroused the greatest concern.
How same-sex marriage was established in American law.
Legal recognition for same-sex marriage was established in two separate decisions by the Supreme Court. In the 2013 Windsor decision, the Supreme Court required that the federal government recognize marriages performed in the various states for federal purposes. At that time certain states had legislated recognition of same-sex marriage, but the federal government did not recognize those marriages for federal purposes, such as federal taxation. The Windsor decision dealt with a very clear example of this disparity between state and federal recognition: the plaintiff was the surviving same-sex spouse of her deceased partner. While they were recognized as a married couple in the state of New York, where they lived, the federal government did not recognize them, and therefore did not give them an exemption from federal estate taxes that is afforded to married couples. This resulted in a very large tax obligation for the survivor and illustrated very clearly the severe practical effects of non-recognition of same-sex marriage. Once the Windsor decision was handed down, federal recognition for all purposes was afforded to same sex couples, including taxes, Social Security, retirement benefits, immigration, and all other federal programs and benefits.
The second decision that established legal recognition for same-sex marriage was the 2015 Obergefell decision, which mandated that all states solemnize same-sex marriages, and that all states recognize same-sex marriages performed in other states. Between the Windsor and Obergefell decisions, we can see that there are three different elements of the recognition of same-sex marriage: (1) federal recognition, (2) individual-state recognition, and (3) inter-state recognition.
The Respect for Marriage Act, H.R. 8404
This past week the House of Representatives in Washington passed H.R. 8404, the Respect for Marriage Act. The title itself is a perfect inversion of the Defense of Marriage Act, which Congress passed in 1996. The Defense of Marriage Act stated that there would be no federal recognition, and no requirement of interstate recognition. Windsor and Obergefell had superseded those provisions, and the new bill aims to reinforce Windsor and Obergefell, since they are now considered vulnerable.
As such, the bill supports same-sex marriage on two of the three points mentioned above. But it does not require the states individually to recognize same-sex marriage so that couples can be married in the states - that is beyond the power of the Congress. Each state is free to make its own rules about marriage, through its legislature or courts. What Congress can do, under Article IV of the Constitution, is to dictate the terms by which the states must recognize any judgment or legal status created by another state.
Now that the Supreme Court has taken such severely activist turn and has thought nothing of sweeping away decisions that the current conservative majority feels were wrongly decided in the past 50 years, there's very great uncertainty about what acts of Congress, or what acts of state law, will be deemed to be consistent with the Constitution. H.R. 8404 appears to be on solid ground, because it is based on the Article IV powers of Congress with respect to the different states, and because Congress has complete authority, under Article I of the Constitution, to define the meaning of any status that is relevant within federal legislation.
Would this law be vulnerable, too?
It is important, however, to note that determinations about marriage and family life are generally within the domain of state, rather than federal, legislation. This is part of the deep history and tradition of our nation's legal structure. And, as we have seen in recent decisions, the current Supreme Court believes that history and tradition are possibly the most important interpretive principles in constitutional jurisprudence. Article IV of the Constitution is a kind of back-office, mechanical aspect of the Constitution, outside the limelight of major issues that define our basic rights. As such, it has not been litigated or interpreted nearly as often in the Supreme Court as many other parts of the constitution. It would appear that Article IV, Section 1, which gives the Congress the power to define the terms of interstate recognition of one another’s legal principles, clearly gives Congress the authority to pass a bill such as H.R. 8404. However, given the traditional reservation of marriage to the jurisdiction of the states, it would not be surprising if someone brought a challenge to this law, claiming that it is somehow outside the scope of Congress’s legislative authority.
What the Respect for Marriage Act would and would not accomplish.
Even if H.R. 8404 does pass the Senate, however, and is not challenged, or survives the challenge, it would not require any state to allow the performance of same-sex marriages. Most states have only solemnized same-sex marriages because of the Obergefell decision; if it is overturned, we would have a patchwork of different laws in red states and blue states, as we have seen very quickly with abortion rights, and as we are likely to see with other rights as this Court proceeds in undoing the major decisions of recent decades. Then same-sex couples residing in those states will be able to marry only by traveling to other states where the solemnization of such a marriage is permitted. When they go home, the federal law will require their home state to recognize their marriage for all legal purposes within the state. But it is easy to imagine that full recognition of the marriage within such a state may entail various legal struggles and that the state courts will then grapple with the exact scope of their obligations to recognize the marriage. For example, on questions of childbearing and adoption, the states could continue to define parentage in terms of a mother and a father, and this may conflict with the facts and realities of family life for same-sex couples.
All in all, it is certainly heartening to see Congress acting to protect the rights of same-sex couples that currently exist under the Windsor and Obergefell decisions. But it is highly distressing that such an action should be necessary, and it is very important for us to understand clearly what this legislation can do, and what it would leave undone, for same-sex couples in different parts of the country.
Ron L. Meyers
Ron Meyers graduated from Columbia University in 1992, from Harvard Law School in 1999, and has been practicing law in New York City since 2000. He worked for several years in major law firms on commercial real estate matters, such as the World Trade Center, the creation of the High Line and the redevelopment of Times Square. He turned to private-client work in 2007, opening his own practice in 2009, where has now served over 1,000 clients. He and his team handle estate planning, probate and residential real estate matters for individuals, couples, and families of all kinds.