The Senate has passed this act, and the House is likely to. What will it mean? Could the Supreme Court not simply overturn it using the same logic it used against Roe? Must states give the state tax breaks accorded to straight White couples to gay couples of color? If these issues are still a problem, does the new act have any impact at all?
No. Roe v. Wade declared that laws banning abortion were illegal, based on an implied right to privacy in the Constitution. Recently, the court changed its mind, and ruled that there is no implied right to privacy in the Constitution, so laws banning abortion are legal again. The logic behind the new decision doesn’t prevent Congress from passing a law making abortion legal in every state. In fact, the ruling basically is, “Abortion isn’t our business one way or the other, you all figure that out on your own.”
Obergefell, which legalized gay marriage, was decided under similar reasoning, so there’s a lot of worry that someone will get a case before the court, and the court will rule that laws banning gay marriage are constitutional, actually. Theoretically, it would work the same as the Roe reversal: gay marriage isn’t something the Constitution covers, so it’s not the Supreme Court’s business if Congress makes laws for or against it.
The new law is an attempt to get out ahead of this by requiring states to recognize same-sex marriages performed in other states, even if their own laws forbid them from being performed locally. So if I marry a guy in California, and move to Alabama, I get all the same tax breaks and survivor benefit and straight couple would get. If Obergefell does get overturned (and it’s not guaranteed that this will happen) this would be a pretty significant protection, and would go a long way to defanging a lot of anti-gay legislation on the state level, at least for gay couples who have enough money to get to a gay-friendly state.
That’s my concern. Some states will defy the law, and it will end up in the Supreme Court. SCOTUS can say the law is unconstitutional since the Constitution doesn’t mention anything about gay marriage being protected or for some other reason. The conservatives have the votes to do it, and nothing can stop them. The will of the people doesn’t matter.
Probably need to get the thread title changed. The Defense of Marriage Act was a Clinton era anti gay marriage law that’s currently voided by court decisions. This is the Respect for Marriage Act.
Obergefell and Roe have been criticized by those not liking the conclusion as legislating from the bench, which isn’t entirely false. In most other nations gay marriage has been made legal through legislation rather than through arcane reinterpretation of a constitution written by people who definitely didn’t intend to include gay marriage and possibly didn’t give a second thought to abortion.
The Supreme Court will find it much harder to overturn the Defense of Marriage Act than to overturn the flimsy bulwark of previous Supreme Court Decisions.
[Moderating]
Two things: First, I fixed the title, to refer to the current act, rather than the opposing one from decades ago.
Second, while the question of what the Supreme Court can do might be a FQ, the question of what they’re likely to do isn’t, and any discussion along those lines is going to have a very difficult time staying in the bounds of FQ. Since that seems likely to be the direction of this thread, I’ve moved it to IMHO.
As I understand, the Defense thing was voided because the Supreme Court (like they did in the original Roe) said there was an implied constitutional right for gay marriage. They removed the right to abortion, saying essentially “the constitution says nothing about this, so whatever a state does or does not do about abortion is legal”.
The fear is a future case could similarly overturn the decision that there is an implied right to gay marriage. After all, the current court has demonstrated that precedent can be ignored. Then the default would also be "the states and the feds can make whatever laws they want.
The current law would say that as mentioned above, the federal law explicitly guarantees a right (also implied in the constitution - IIRC “full faith and credit”, that what a court says in one state other states must give credence to) that any marriage between two people legally established in one state must be recognized as a marriage by all other states.
This is no different than saying, for example, a contract or adoption or name change or whatever that is done legally in one state, other states must give full faith and credit to that act. If a state could simply say for example, “here in Florida, a contract signed in Utah, or a debt, is not legally binding” then multiply that by 50 and the country would be in chaos.
As was said in the GD thread, I suspect it’s going to be harder to argue that the states are allowed to disregard full faith and credit on this issue with the passage of the Respect for Marriage Act. DOMA, of course, did the exact opposite.
Second, I’m rather annoyed by the “look at all the dumb red states that will immediately ban gay marriage if Obergefell falls” takes that seem popular on the left. Many states, including those “dumb red states” had already legalized same sex marriage either through state supreme court decision or legislatively. Some much sooner than states like New York did. We were up to two thirds of the country by 2015.
That’s by design. The judicial branch doesn’t represent “will of the people”, that’s the legislative branch.
Thanks! My memory does that…
Actually, the design is that all three branches represent the will of the people.
Not really. There are several things that would probably be outlawed by popular demand, if it weren’t for the 1st Amendment.
No. The Senate was originally designed to represent the States, not the will of the people. And the judicial branch, interpreting the Constitution and laws, was never designed to bend to public opinion.
Well, the laws, amendments and justices should all lead back to the people eventually, but that takes time. It’s the whim of the people that the judiciary is supposed to be insulated from.
To the OP: there’s a scene in the movie Loving (great movie, BTW) where Virginia law enforcement is arresting them for anti-miscegenation laws. They produce a copy of their marriage license from Washington DC, and are told ‘that’s no good here’. Eventually SCOTUS ruled the Virginia’s laws violated the full faith and credit clause and, therefore, violated the Constitution.
If today’s SCOTUS were to decide that the 1967 SCOTUS got it wrong, there’d be nothing to stop Virginia from re-asserting anti-miscegenation laws. Going forward, SCOTUS would have to rule that the Respect for Marriage Act was unconstitutional, as well, which is probably a much tougher bar to cross.
At least, that’s how I understand it, IANAL
Not so. The Court ruled that Virginia’s marriage laws violated the Equal Protection Clause (overturning an 84-year old precedent) because they were based on racial classifications (and only applied to interracial marriages involving White persons) as well as the Due Process Clause because the freedom to marry was an essential personal right.
It is frequently declared that the FFC clause would require a state to recognize any marriage lawfully performed in another state (even if that marriage were unlawful under the laws of the first state), but I don’t believe that any court has ever so held. (There is some law involving common law marriages that would tend to support this position, but I don’t think the outcome is obvious within the existing FFC clause framework).
It’s the age-old question that since FDR has almost always been ruled in favor of the Federal Government. The Supremacy Clause ensures that Federal Law overrules contrary state law. However, Congress only has enumerated powers (and plenary powers but that’s not pertinent for this discussion) meaning they can only legislate on issues the Constitution specifically give them power over. Otherwise the states & people have the power under the Tenth Amendment. So the question is: does the Federal Government have an enumerated right to pass laws regarding abortion? If not, then RfMA would be unconstitutional.
Why would that be the question? The RFMA doesn’t deal with abortion.
Yeah, derp move there.
So rephrase it as
Does the Federal Government have an enumerated right to pass laws regarding marriage? If not, then RfMA would be unconstitutional.
Since the effect of marriage carries over state lines in terms of benefits, visitation in hospitals, etc., etc., and there’s a provision for states respecting each others contracts, then yes, it would seem congress can regulate it.
Note, I’m not saying that the current Supreme Court wouldn’t toss it by the wayside. Who knows what they’ll do?
As I remember it, the Defense … Act said that the Federal Government would not recognize gay marriage so if I were in a same-sex marriage recognized by my state we still could not filed our 1040 as married. Likewise no spousal veterans benefits, social security benefits, etc. I believe (correct me if wrong) that the Respect … Act will now codify that same-sex spouses get their spousal benefits from the Feds, can file joint 1040s, etc.