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The U.S. Senate Marriage Bill and the Constitution
Andrew Hyman

House Resolution 8404 titled the “Respect for Marriage Act” seems on track to become law soon, having been amended in the Senate, and then having cleared the 60-vote filibuster threshold (62 to 37).  The full text of the bill following the Senate amendment is here.
Journalist Byron York opines that the bill is needless in view of the U.S. Supreme Court’s decision seven years ago in  Obergefell v. Hodges. My perspective is somewhat different; this legislation seems like a good sign that people realize there’s something insufficient and peculiar about a purported democracy having social policy changed judicially without any clear constitutional authority to do it through the courts alone.

Relatedly, there was a recent debate here at the Originalism Blog between Professors Earl Maltz and Lawrence Lessig about what the Supreme Court meant in The Slaughter-House Cases.  Did the Court mean that the Fourteenth Amendment expanded Congress’s power to compel states to respect new “privileges or immunities of citizens of the United States” or not?  Professor Maltz argued "not" and I think his argument is correct.  However, the language of the Equal Protection Clause is very different from that of the Privileges or Immunities Clause, and the former specifically references "the laws" which refers to both state statutes and federal statutes.  Thus, the Equal Protection Clause contemplated a substantive role for Congress, not merely an enforcement role under Section 5, in my opinion.  So, on that score, it looks to me like a very good thing that Congress is now getting ready to act on the same-sex marriage issue, instead of leaving it solely to the Supreme Court.  

But regardless of whether congressional action is necessary now or not, that still leaves the question whether Congress is going about it in an entirely constitutional way.   The article I linked above from Byron York says that the Senate amendment did not change the fact that the bill “gave the right to sue to one side but not to the other” with regard to religious objectors.  York also says that another Senate amendment was rejected that would have protected a person who "speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction” about what marriage means.  And religion is not the only issue here.

In addition to First Amendment issues about religion, there are also free speech issues unrelated to religion.  First and foremost, the great advances that the United States has made in the area of racial equality never required any state to refer to black people as “white” (or vice-versa).  So, it is at least questionable that Congress would now require states to refer to gay couples as “married,” assuming that there are other non-derogatory words available, and also assuming that all substantive and procedural rights that a state offers are the same for gay couples as for straight couples.  Indeed, when Proposition 8 was passed by Californians in 2008, everyone in the ensuing legal controversy agreed that the state’s civil partnership regime provided all the same rights, including the right of private citizens to call civil unions “marriages,” with only one exception: the right of people in civil unions to demand that the state refer to them as “married.”  As the Supreme Court of California put it: "Proposition 8 … carves out a narrow exception applicable only to access to the designation of the term 'marriage….'"

From an originalist point of view, the Full Faith and Credit Clause (upon which the present House Res. 8404 is largely based) should be construed in a way that causes minimum conflict with the later-enacted First Amendment and any discrepancy resolved in favor of the latter.  Likewise, I do not see any evidence that the Fourteenth Amendment was meant to alter the First Amendment in any way that is pertinent here (nor any way at all).  A state would seem to have a legitimate First Amendment interest in using a word for same-sex couples that the state reasonably believes (1) is respectful, (2) does not imply that having a mother and father is exactly the same as having two fathers or two mothers, and (3) does not modify longstanding definitions of English words.
In a 2015 blog post, Professor Eugene Volokh wrote: “Do state and local governments have First Amendment rights against federally imposed speech restrictions? You'd think this would be settled, but it hasn't been.”  As far as I know, the leading law review article on this subject remains State Actors as First Amendment Speakers by Professor David Fagundes.  Fagundes wrote:

I thus suggest an approach that draws from two strains of constitutional theory, arguing that government speech can lay claim to constitutional protection only where the expressive conduct at issue is intrinsic to the public function of the entity speaking and where that conduct furthers the values of democratic self-government that animate the First Amendment.

Issuing licenses to couples is a longstanding public function dating back to the early 1600s in the United States, and phrasing those licenses is an intrinsic part of that function.  Moreover, the Full Faith and Credit Clause was designed to prevent significant disruptions between states, and the vocabulary dispute at issue here seems rather non-disruptive in an interstate sense.  Quebec uses an entirely different language from Saskatchewan, but Canada survives, and here we are discussing but a single word, albeit one with large social ramifications.  The First Amendment should stop the federal government from forcing states to use one reasonable vocabulary instead of another reasonable vocabulary, when it comes to this matter.