Second of two articles. The first article, appearing just below, described the details of the new Respect for Marriage Act, due to be signed today by President Biden.
Across America, there are about 710,000 couples who have taken advantage personally of a historic Supreme Court decision: they are same-sex couples, and they are married, according to the latest available Census Bureau data. This afternoon, President Biden is scheduled to sign into law the new Respect for Marriage Act, to put those marriages on a more secure legal basis.
But how sturdy is that basis? Will it survive the almost inevitable court challenges that opponents of same-sex marriage could bring? The answer: it depends first upon whether the Supreme Court will continue to rely upon its 2015 decision that gave those couples a constitutional right to marry, and, if it does not, whether it will uphold the new law or find it to be beyond the powers of Congress.
What are the prospects that the 2015 decision will be abandoned by the Court’s new conservative majority of six Justices, and what chance is there that the new Respect for Marriage Act might fall?
Supreme Court Justice Clarence Thomas is, so far, the only member of the Court who is openly advocating that the 2015 same-sex marriage decision in Obergefell v. Hodges be reconsidered and that its constitutional foundation be “eliminated at the earliest opportunity.”
But keep in mind that the Court decided that ruling by a 5-to-4 vote, that only two of its Justices then in the majority remain on the bench, that the other three have been replaced by noticeably more conservative Justices, and that three of the dissenters are still there. At this point, can one count at least to a majority of five for turning marriage rights back to the states, just as five did last June with abortion rights?
Of the three new conservative Justices who were not on the Court in 2015, Justices Amy Coney Barrett and Brett M. Kavanaugh seem the least likely to vote to overrule that precedent. The third, Justice Neil M. Gorsuch, is more conservative than those two, so he might be closer to being ready to take that step.
It would be entirely predictable for two dissenters in 2015 – Justice Thomas and Justice Samuel Alito – to still hold that view. Chief Justice John Roberts was also a dissenter then; he tends to be less inclined to overrule major precedents – as, indeed, he did not want to do on the abortion question.
An optimist among advocates of same-sex marriage would examine those voting patterns and hope that the Obergefell precedent would survive – even if just barely.
But recall that Congress, in passing the new Respect for Marriage Act, had a sense of urgency about the future of that precedent after Justice Thomas spoke out, and that is why it could put together bipartisan majorities in both houses to pass a bill seeking to protect already-married gays and lesbians and others who now join in marriage.
The new bill, due to be made into a law of the land this afternoon at the White House, would allow states to ban new same-sex marriages from occurring within their borders if the 2015 decision is scuttled, but would require them to honor same-sex marriages performed legally in other states.
Was it constitutional for Congress to do that? That question would not arise, if the Supreme Court stands by its seven-year-old precedent on the basic question of a constitutional right. But, suppose it doesn’t?
Congress, according to formal findings by the House of Representatives, located its authority to enact this new measure in four clauses in the Constitution.
By far the sturdiest support is found in the so-called “full faith and credit” clause in Article IV. This was put into the Constitution by the Founders as part of their plan to strengthen the new Union they created in 1789. It requires each state to fully respect the “acts, records and judicial proceedings” of every other state. Marriage is, of course, a legal act. Critically, this clause gives Congress the authority to provide for enforcing its mandate.
The second clause is the guarantee of “due process” (part of the Fifth Amendment) that promises that the federal government would observe basic fairness in its dealings with the people, including a duty to treat all people fairly. But that very concept of “due process” is the direct target of Justice Thomas’s new challenge.
Next is Section 5 of the 14th Amendment, which gives Congress the authority to pass laws to enforce the rights that are guaranteed by that Amendment. However, the Supreme Court ruled in 1997 that Congress cannot use that power to give more protection for those rights than the Court itself has recognized. So, if the federal constitutional right to same-sex marriage were to be overruled, that precedent might well threaten the Respect for Marriage Act.
Finally, Congress relied upon one of the Constitution’s most open-ended provisions in Article I, Section 8. That allows Congress to pass all laws “necessary and proper” to carry out the Constitution. However, the Supreme Court in one of the key decisions (in 2012) on the Obamacare health insurance law left no doubt that the sweep of that authority is nowhere near what Congress had long assumed.
America may not have to wait very long for some of this to begin to be sorted out. Once President Biden signs the new same-sex marriage bill into law today, it is likely to be challenged in court. Same-sex marriage has very well-financed and legally energetic foes, and they may be eager to make a trip to the courthouse.