« 2023 Originalism Works-in-Progress Conference Papers and Commentators
Michael Ramsey
| Main | Ed Whelan on Moore v. Harper [Updated]
Michael Ramsey »


Two Points Concerning the Proposed “Respect for Marriage Act”
David Weisberg

I would like to make two points concerning the U.S. Senate’s proposed “Respect for Marriage Act” (RFMA), which would make it unlawful for any State official “to deny full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex … of those individuals.”  It should be noted that there is no requirement that any or all States permit same-sex marriages; there is only the requirement that a State not deny the validity of a same-sex marriage validly entered into in another State.  The RFMA would also require the federal government to recognize same-sex marriages.  The motivation for the RFMA clearly is Justice Thomas’ concurring opinion in Dobbs, in which he urged reconsideration of “all of this Court’s substantive due process precedents, including GriswoldLawrence,  and Obergefell.  

The first point is that, with all due respect to Justice Thomas, I think the odds are close to zero—or perhaps I should say 8 to 1 against—that the Court will overturn Obergefell.  The U.S. Census Bureau has estimated that, in 2019, there were 543,000 same-sex married couples in the U.S.; that amounts to more than one million married individuals, and does not include the many thousands of children and other dependents in those families.  There almost certainly are even more such couples today.  The reliance issues arising from those marriages are vastly weightier than those arising from the abortion right proclaimed by Roe and its progeny, which was reversed in Dobbs.  The practical consequence of that reversal is that some pregnant women will have to travel farther than otherwise to undergo abortions.  It is, I believe, virtually unimaginable that a majority of the Court would overturn Obergefell and thus chaotically disrupt the domestic relations of substantially more than one million Americans.  For that reason alone, even if (as I believe) it was wrongly decided in 2015, Obergefell will not be disturbed by the Court. 

The second point relates to Andrew Hyman's interesting recent post on this blog, questioning whether the RFMA would be consistent with First Amendment free speech rights States might enjoy as against the federal government.  He writes: “[I]t 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.”  This assumes that the RFMA would require States to refer to gay couples as “married”.  I’d like to offer an alternative analysis. 

When Henry VIII required his subjects to swear an oath affirming the validity of his marriage to Anne Boleyn, Thomas More remained silent; he did not take the oath, but he also did not deny the validity of the marriage.  It seems to me that a State and its officials could—without running the risk of being beheaded, as More finally was—similarly remain silent as to the validity of an out-of-State same-sex marriage, while nevertheless treating it the same way it treats any other marriage.  For example, a State’s income tax form could include an instruction such as: “If two persons residing in this State have either entered into and remain in a valid marriage in this State, or have entered into and remain in a marriage that was valid in the State where it was entered into, then those two persons may use ‘Form M – Filing Jointly’ for this State’s income tax return.”

This instruction would apply to a couple that now resides in State A but had formerly entered into a common-law marriage (which State A does not permit) in State B, or a marriage of first cousins (which State A does not permit) in State B, as well as a couple that had entered into a same-sex marriage (which State A does not permit) in State B.  The instruction does not assert or imply that State A itself affirms the validity of either common-law, first cousin, or same-sex marriages; it implies only that the State recognizes that other States affirm the validity of those kinds of marriages.  I think careful drafting could yield instructions, rules and regulations that would all treat out-of-State same-sex (or common-law, or first cousin) marriages the same as in-State marriages, without any affirmation of the validity of those out-of-State marriages.

The foregoing depends on a distinction—the difference between not denying the validity of certain marriages and positively affirming the validity of those marriages—that is admittedly a fine one.  Still, fine or not, there is such a distinction.   Moreover, it’s hornbook law that, if a statute can be construed to avoid questions of constitutionality, it should be so construed.  So, it may be that, if the RFMA becomes law, that fine distinction can obviate a difficult issue.