Is the “Respect for Marriage Act” an overall win for liberals?

I’ve read what it’s about but I’m still somehow struggling to determine if the fact that it “ would not force states to issue marriage licenses to same-sex couples but would require that people be considered married in any state as long as the marriage was valid in the state where it was performed” has any wiggle room for anti-LGBTQ laws. I’m just too cynical to take it as a total win, particularly since ten Republicans voted for it- maybe I’m wrong?

It’s not a total win - there’s absolutely room for Texas to decide not to allow same sex marriage. What it does is require Texas (and the Federal gov) to recognize a same-sex marriage that began in New York. It’s the opposite of the Defense of Marriage Act (1996) which allowed states and the Feds to ignore same sex marriages from states where they were legal.

It feels like a pretty big win to me. Too bad they didn’t get it out the door before the midterms, but there’s no way the Rs would have voted for it. In any case, it is a good piece of progressive legislation that will be mainly popular to everyone except the bigots that would never vote D anyway. It is also, if I’m understanding correctly, prevents the SCotUS(R) from gutting same-sex marriage that I’m sure they were planning to do. I’m sure allows a lot of same-sex marriages from stress relief.

I’m not sure that it does stop them. It doesn’t make SSM safe from overturning or codifying it into law.

Here’s an article on the act itself that reinforces your thoughts that it’s a good piece of legislation (with a few flaws).

EDIT: Dammit Grammarly stop suggesting changes.

Thanks for the info.

What if it’s the reverse of overturning Roe?

That is: when Roe was in place, right-wing candidates could take hardline anti-abortion positions; some voters would take that as red meat, and some voters would say, well, I’m not in favor of banning abortions; but, hey, if elected, that legislator won’t actually get to vote to ban abortions — so I can hold that as pretty much irrelevant while looking at the candidate’s other positions, which, ooh, I like this one.

And now, uh, not so much.

So imagine someone running for state office declares they’re against same-sex marriage; would this Act now allow voters to say well, I’m not in factor of banning that; but if all this means is that a same-sex couple will have the wedding in another state, and then be considered married here, meh, can’t I pretty much just consider the other positions?

I don’t there’s anything more that Congress can do short of sending a constitutional amendment to the states. If Obergefell were to go, then (AFAIK) Congress would automatically lose the power to directly protect the right to marry, because Congress can only pass laws to enforce the rights already protected by the 14th Amendment. (With abortion and “codifying Roe,” there’s a plausible case that abortion happens within interstate commerce and so could be regulated in either direction by Congress. I think it would be a lot harder to extend that idea to the issuance of a marriage license by a state.)

I think there’s an analogy here between the new world of abortion (wherein some people have to travel out of state to get one, but when they come home they are not pregnant), and this Act (wherein some people have to travel out of state to get wed, but when they come home they are still wed).

And of course Josh “Jog On” Hawley wants it to go back to the states to decide.

IMHO what it does is separate the justices who are Republican but still care more about the US than the Republican Party (Gorsuch, Kavanaugh, Coney-Barrett) from the ones that care more about the Republican Party than the US (Thomas and Alito). With legislation in place, should the issue ever reach the court, it’s likely to be only Alito and Thomas ruling to overturn Obergefell while simultaneously striking down the new law. The three Trump justices, seeing that they would now have to strike down a federal law in addition to overturning Obergefell, are now likely to side with Roberts and the liberal justices. Without this legislation the Trump justices would have been more likely to side with Thomas and Alito.

What it does is shift how SCOTUS considers it. Previously, as we saw with Roe v. Wade, the only thing keeping it in place was the concept of stare decisis, meaning that once something is decided, it’s done. And we saw that the SCOTUS was entirely willing to revisit it and overturn it.

The same thing would be in play with Obergefell- they could very easily come up with a reason that their previous decision was legally sketchy and overturn it based on a new case. It would all be based on the legal reasoning or lack thereof of the prior SCOTUS decision.

But now with legislation passed, it shifts into having to prove that the legislation itself is unconstitutional, which is a much higher bar to pass. They’re essentially in the position of telling Congress that the law they passed runs afoul of the Constitution in some way, which is much more difficult.

IANAL obviously, but I’m curious to know how a state trying to bring a suit trying to undo Obergefell would argue it. When it came to Roe, the plaintiffs had the argument (which, caveat, I don’t agree with) that abortion is all about killing babies, and there’s actual harm being done to children as long as abortion’s legal.

It seems to me, and I’m hoping, they’d have a harder time even implying that anyone was harmed by two adults of the same sex getting married beyond “it makes me feel icky.” With certain members of this SCOTUS that may be a persuasive argument, but I’m wondering how a state bringing a suit would approach it from a legal perspective.

The only vaguely legal-sounding ones I can think of are either “gay marriage by couples hurts kids” or “any two people getting married will affect taxes.” IANAL even a little bit, though.

There’s always the old chestnut of states rights that they could try, but I think it’s now unlikely for the reasons mentioned by @bump.

I think only Thomas and Alito are willing to go that far, and state legislatures aren’t likely to try to pass a law that would only be upheld by two SCOTUS justices at best.

I wouldn’t depend on local(or regional or statewide) Texas law enforcement to actually enforce this.

The headline question is always the wrong question. Liberals and conservatives shouldn’t be aiming for “wins” on a partisan basis. This leads to the idea that it’s better to blockade legislation both sides want because the other side might get too much credit. This is inane. All politicians should be trying to pass laws that are better.

The Respect for Marriage Act is better. It might sound nice if the law required states to just let gay people marry if they so choose. In my humble opinion, it’s unfortunately unconstitutional to force states to issue marriage licenses. The mandate would be unfunded and marriage has largely been the province of states’ sovereignty. There is no constitutional requirement for states to allow anyone to marry or to recognize marriages at all. The current Supreme Court would not accept congress using the interstate commerce clause to force states to issue marriage licenses. So, the law that majorities in both parties want (forcing states to issue marriage licenses to gay couples) wouldn’t pass muster. The Respect for Marriage Act is the best congress can do using the full faith and credit clause. If Backwardabama and Montanistan don’t want to allow gay people to marry, they will be stuck with all the gay married people in their states who spent all their wedding budget in states run by civilized people. Their intolerance will hurt them, as it should. The Respect for Marriage Act won’t do as much for gay people as we’d like but it will discourage states from trying to ban gay marriage since they will still have to recognize gay marriages from other states.

…I have to admit, on my first read I kind of thought you were going somewhere else with that.

I disagree with this. The states don’t have to issue marriage licenses at all, but the constitution prohibits discrimination in how they choose to issue them.

We’re saying the same thing. States don’t have to issue marriage licenses at all or make any provision in their laws acknowledging or favoring marriages. There is no constitutional right to marriage or constitutional requirement for states to sanction them.

And it’s a particularly clever piece of legislative judo; it’s going to be a LOT harder to challenge a law that basically says “States have to respect the Full Faith and Credit clause of the Constitution when it comes to marriage.” That’s pretty much constitutional by definition.