Monday, November 21, 2022

Two Oddities in the Respect for Marriage Act

by Michael C. Dorf

Last week, the Respect for Marriage Act (RMA) cleared the very substantial hurdle of a Senate cloture vote. Its passage now seems assured. Even if some of the Republican Senators who voted for cloture don't vote for the bill itself, it will surely garner majority support in the chamber. It will then go back to the House to vote on the amended version, and then to President Biden for signing.

Is that a big deal? As I explain in my latest Verdict column, in the short run the RMA doesn't do anything, because the SCOTUS ruling in Obergefell v. Hodges protects same-sex marriage as a constitutional right. But as I also explain in the column, there is at least some reason to fear that the SCOTUS conservative super-majority might overrule Obergefell. I don't think that's likely, mainly on legal realist grounds; however, I don't find the reassurances that Justice Alito offered in Dobbs v. Jackson Women's Health very reassuring.

My Verdict column describes what the RMA does: (1) repeals the Defense of Marriage Act; (2) forbids states from refusing to recognize interracial and same-sex marriages from other states; (3) provides that federal law will treat as married people who are married under state law; and (4) in the version that's pending in the Senate though not the original House version, exempts religious non-profits from any obligation to provide goods or services to celebrate weddings they disapprove on religious grounds.

The key language in the RMA forbids state actors from denying recognition "to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or nation origin of those individuals." The federal definition provision (in the version pending in the Senate) also contains the "2 individuals" proviso (twice). In the balance of this essay, I want to discuss two oddities of that language: (A) the use of the word "sex" to somewhat obliquely invoke same-sex marriage; and (B) its rejection of plural marriage via the use of "2."

(A) What would it mean for a state to deny recognition to an out-of-state marriage on "on the basis of the sex" of the people seeking recognition? In Bostock v. Clayton County, the Supreme Court held that Title VII's prohibition on workplace sex discrimination encompasses a prohibition on workplace discrimination based on gender identity or sexual orientation. Applying that logic, denial of recognition to same-sex marriage while recognizing opposite-sex marriage would also amount to discrimination "on the basis of sex." Nothing to see here, right?

Well, maybe not. Remember: the RMA only has bite in the event that SCOTUS overrules Obergefell. But a Supreme Court that's willing to overrule Obergefell might also be willing to overrule Bostock. Accordingly, if it were not too late to amend the RMA (because the cloture vote already occurred), I would advise the Senate to be even more explicit by saying that state actors may not deny recognition to a marriage on the ground that the people married out of state are of the same sex as one another.

That said, even if the Court were to overrule both Obergefell and Bostock, it would be mistaken to read the RMA as failing to require recognition of out-of-state same-sex marriages. After all, Congress is presumed to legislate against the backdrop of the Court's decisions. Thus, it can be presumed that the Congress that will enact the RMA will intend for it to forbid states from denying recognition to valid out-of-state same-sex marriages because at the time of the RMA's enactment (i.e., now) Bostock shows that prohibitions on sex discrimination forbid discrimination based on the fact that the partners to a marriage are of the same sex.

But wait. That's an argument that inquires after Congress's intent, not just the meaning of the enacted text. And while Bostock itself applies a textualist methodology, we can imagine a future Court that overrules Bostock agreeing with Justice Alito's dissent in Bostock, which asserts that the majority opinion of Justice Gorsuch "sails under a textualist flag" but "is like a pirate ship." Real textualism, the future (even more) reactionary Court might say, treats sex discrimination as limited to laws that disadvantage women as a class or men as a class but not same-sex pairs.

Even so, there is a further reason to treat the use of the word "sex" in the RMA as referring to same-sex marriage even in a world in which Bostock is overruled. If Title VII's prohibition on sex discrimination did not cover sexual orientation (or gender identity) discrimination, Title VII would still do a lot of work. It would forbid conventional sex discrimination against men or women. By contrast, however, if the RMA's prohibition on the denial of recognition to marriages "on the basis of the sex" of the people who were married does not refer to same-sex marriages, it's not clear that prohibition applies to anything. Put differently, if the only kind of marriages a state recognizes are opposite-sex marriage, it's hard to see how the state could discriminate based on sex with respect to marriage. Every denial of marriage (other than to same-sex couples) would then be a denial of a right to marry of a man and a woman. No sex discrimination, right?

Well, not quite. Suppose a state denies recognition to all same-sex marriages AND denies recognition to marriages of women over the age of 55. Why? Perhaps the state legislature wants to reserve marriage for its (supposed) original purpose of ensuring that children are born into a two-parent home. That's the sociobiological account of the origin of marriage given by Chief Justice Roberts in his Obergefell dissent ("for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond"). So the state doesn't permit marriages of people who couldn't otherwise accidentally procreate and thus bars women who are likely to be infertile from marrying but imposes no age limit on men who wish to marry. Such a restriction would run afoul of the RMA's prohibition on state failure to recognize a marriage on the basis of sex. Thus, our future super-reactionary Court could say, construing the RMA to have no application to same-sex marriage would not render the "on the basis of sex" language nugatory.

Is the foregoing persuasive? No, but again, the point of the RMA is to protect marriage equality in a world in which SCOTUS is doing everything it can to undermine marriage equality. For that purpose, it would be better to use the clearest language possible.

(B) Now let's talk about plural marriage. No state currently recognizes any form of plural marriage. Suppose a state were to change course and allow it when all parties consent. What the "it" is would depend on all sorts of details. Traditional forms of polygamy allowed a man to have multiple wives, but the wives in such a family unit were not married to one another. A more egalitarian form of plural marriage would have everyone in the group married to everyone else in the group. Presumably a state that allowed plural marriage would cap the number of people who could be considered married. Etc. Let's not worry about the details.

I'll make up a schematic example. Bob, Carol, Ted, and Alice are in love with each other. They have no religious reason to want to marry, but they do want to all marry one another. Now let's say Nevada legalizes plural marriage for up to 4 people. Bob, Carol, Ted, and Alice go to Vegas to celebrate their marriage. They then move to Pennsylvania, which prosecutes each of them for bigamy. Under current law, the prosecution is permissible because, as I explain in the Verdict column, states may generally apply a public policy exception to the obligation to give full faith and credit. The RMA's reference to "2 individuals" reinforces but does not change the permissibility of that denial.

But the RMA could be read to work a change at the federal level.

To be sure, various bits of federal law already forbid bigamy in particular contexts, such as within the military, in the territories, and with respect to immigration. Moreover, federal statutes that refer to marriage are typically worded in a way that presumes that only two people at a time can be married. For example, the Internal Revenue Code permits "a husband and wife" to file a joint tax return. Now insofar as that language precludes a "husband and husband" or a "wife and wife" from filing jointly, it's invalid under Obergefell and United States v. Windsor. But those decisions do not appear to supersede the implicit but clear assumption that a marital unit comprises exactly two people.

However, at least some other provisions of federal law are textually compatible with plural marriage--even though it's pretty obvious that Congress intended and expected them to apply to 2-person marriages only. For example, a tax provision regarding gifts to spouses mostly refers to "the donee spouse" in a way that could be adapted (albeit awkwardly) to apply in a case in which, say, Bob gives a gift to Alice and another gift to Carol. Insofar as Nevada's (hypothetical) allowance for plural marriage could, under current law, entitle our (hypothetical) married quartet to be treated as married under federal law for some purposes, the RMA forbids that.

Why? The short answer is that people who favor plural marriage have very little political power. Indeed, during the struggle for marriage equality, opponents frequently invoked plural marriage as the most dreaded float in the parade of horribles that would ensue, while proponents played along by offering whatever grounds they could find for distinguishing plural marriage from same-sex marriage. As Will Baude argued in a NY Times op-ed in the wake of Obergefell, those grounds aren't all that persuasive, noting that "while Justice Kennedy’s opinion repeatedly presumes that marriage involves two people, it is not hard to imagine another justice in 20 or 40 years saying that the assumption is similarly unenlightened."

Should that occur, it is quite possible that it would be in a case challenging the federal law definition of marriage as limited to 2 people that the RMA would put in place.