As rock solid as the Emoluments Clause.
I’m not sure that I agree. I don’t think that this will make it less likely that the Supreme Court will overturn Obergefell and might even make it slightly more likely. Previously the Justices would have to contend with the fact that overturning it would invalidate hundreds of thousands of marriages already on the books. This provides them an easy out by grandfathering in all of the previous marriage, but overturn Obergefell by allowing states to decide to no longer certify any new marriages going forward. Its still probably good legislation since it prevents the worst case scenario of gay residents in red states losing all benefits rather than just requiring them to plan destination weddings.
This raises another interesting thought in my mind with regard to a plan to further reduce the burden on gay couples. Is there any reason that the federal government couldn’t start issuing marriage licenses of its own in federal court houses?
A state deciding to no longer certify marriage would play havoc with the state’s own regulations, everything from tax policy, to adoption, to hospital visitation. In short, everything that same sex couples suffered. The legislature may have decided that was okay to do to gay couples, but I can’t conceive of any state telling thousands of young straight couples each year they can’t get married anymore.
Sorry I thought it was clear from context that when I wrote
I meant new gay marriages.
It’s my understanding that in the years before Obergefell, the Full Faith and Credit clause specifically carved out marriage as an exception to that clause, but I don’t have a clear idea of how that carve-out came about in this first place. Can anyone fill me in on that?
TIA
The Defense of Marriage Act of 1996—
Thank you. As extra research, I read up on Loving v Virginia, and found it confusing that the FFC clause was never mentioned as being raised as an issue in that case. Or is that just another example of Wikipedia as a research source being less than ideal?
Definitely not one of Bill Clinton’s shining moments.
That’s sort of the point- if Obergefell was overturned, then a state can outlaw gay marriage within its borders. But this legislation would defang that, in that all gay couples would have to do is plan a destination wedding to a state allowing gay marriage, and they’d be ok. It’s a sort of defense-in-depth strategy.
I would imagine a constitutional challenge to this would be tough, specifically because the legislation basically reinforces the Full Faith and Credit clause, instead of doing something janky like the DOMA did by trying to carve out an exception (and got repealed for as a result).
You are too forgiving. Signing DOMA and implementing Don’t Ask, Don’t Tell are two of the greatest betrayals in history of the LGBT community by any politician who claimed to be one of our allies. I still despise him for this and find it deeply disappointing that so many of my siblings in the community continue to look on him with affection.
Did it get repealed, or was it merely made moot by Obergefell? ‘Cos if that falls, an unrepealed DOMA goes back into effect, doesn’t it?
Repealed is maybe the wrong word, but between Obergefell and Windsor, it was declared unconstitutional by way of the Due Process and Equal Protection clauses and Due Process clause respectively.
But that’s the point- even if Obergefell gets overturned, then they still have to overturn this piece of legislation, which is an entirely different ball game for SCOTUS versus merely reversing one of their own decisions.
And what makes it even more difficult is that the way that the RfMA is written, it’s basically enjoining the States to enforce the Due Process and Full Faith and Credit clauses- in other words, instead of just trying to declare a piece of legislation unconstitutional, they’re going to have to essentially declare those parts of the Constitution unconstitutional.
The House has passed the Respect for Marriage Act:
I’m not sure but I would have at least two questions: what authority would congress use to pass such a law? Historically, marriage is a creature of state law and I don’t know what authority in the Constitution would allow congress to do it.
Second, would the supremacy clause be sufficient grounds to require states to recognize a marriage? States recognize each others’ marriages because of the full faith and credit clause, which says that states have to recognize each others’ “public acts, records, and judicial proceedings.” But the full faith and credit clause doesn’t require states to recognize the actions of the federal government. States have to recognize federal power under the supremacy clause. which says simply that federal law is the supreme law of the land. But there are limits on the supremacy clause. A big one is the tenth amendment, which says that, “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.” Issuing marriage licenses is one of those things that has always been implicitly recognized as a power reserved to the states. I think it would be very tricky and possibly unconstitutional for Congress to create a “federal marriage license” that states must respect. Congress could create a federal marriage license that works for federal purposes (like immigration and income taxes) but is useless at the state level. No one wants that. The Respect for Marriage Act is a better path.
As an aside, I wonder, if Obergefell is overruled, how many states will update their marriage laws to protect gay marriage? Pre-Obergefell, states were all over the map. Some had legalized gay marriage under their own constitutions or by statute. Other states had expressly prohibited it. Some states were in the process of amending their laws to legalize it but Obergefell mooted those efforts. States might have to pick that work back up if they want to keep gay marriage in a post Obergefell world.
As far as authority goes, that’s easy. Federal income tax is dependent on whether or not a person is married, therefor the Federal government should have the ability to decide who is or is not married for those purposes, and so it is well within its power to unilaterally set up a system by which individual couples could register their change in status.
As for the supremacy clause, you may have a point, I’ll leave it up to the lawyers.
Wikipedia has a page with maps that show the law as it currently stands. Its pretty grim. Basically other than the blue wall states, SS marriage would be illegal or even unconstitutional. Its not clear how the state courts would handle grandfathering in marriages performed since Obergefell but even with increased support for SS marriage, I doubt that many Republican dominated state legislatures would lift a finger to update their laws.
Honest question: what happens if a couple wants to get married in Washington DC?
Loving’s attorneys (the ACLU) never brought up FFC, but instead used Equal Protection. There is a history that says marriages can be not recognized if it offends the decency of the state (or something like that) - in the past it’s mostly been used for age of consent. Basically, if one state allows 12 year olds to be married, another state doesn’t have to recognize that marriage. This law would (seemingly) prevent states from using that sort of justification to refuse to recognize other states’ marriages.
Which is why I said, “Congress could create a federal marriage license that works for federal purposes (like immigration and income taxes) but is useless at the state level. No one wants that.”
Interesting question. Honest answer: I don’t know. The simple answer is that people get married in DC all the time. Congress has plenary authority over DC because it is not a state. DC issues marriage licenses under home rule laws that are allowed under congressional statutes. DC and the federal government recognize those marriages. I’m not aware of any state that has tried ignore DC marriages, so I don’t know what would happen if a state chose to ignore a DC marriage. I presume these acts by the DC government are recognized because they are, in fact, federal laws passed under the authority of congress and states must recognize them under the supremacy clause. But this is a hunch and not the product of actual research. I’m not sure.
Sorry, I missed that.
For the purposes of the Respect for Marriage act, they specifically include it.
In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
This is actually a huge issue for me.
When I, an American citizen, got gay-married in Canada to a non-American, gay marriage was not recognized by the Federal government of the USA. U.S. tax law requires a married American living abroad to report all of their spouse’s assets and requires that spouse, over whom they have no authority, to get a Taxpayer Identification Number. My husband refuses to do this, because we married on the understanding that our marriage was valid in our country (=Canada), but invalid in most other countries incuding the USA.
In 2015, when the rules changed, it was not clear to me whether (for tax purposes) I had got married in 2011, in 2015, or never since no ceremony or paperwork changed following Obergefell.
Telling me (and, I hope, all of your heterosexual friends and neighbors) that they have to have a separate federal marriage for tax purposes is hugely discriminatory, and is a step only those with assets and means would take.
No worries.
I was answering what would happen in today’s climate without the bill but this is probably closer to what The _Other_Waldo_Pepper really wanted to know. Thanks.