The Constitutionality of a Federal Law Mandating Marriage Equality

by Michael C. Dorf

Last week, the House of Representatives passed the Respect for Marriage Act (RFMA) which would repeal the operative provisions of the Defense of Marriage Act (DOMA). In 2013, in United States v. Windsor, the Supreme Court invalidated Section 3 of DOMA, which defines marriage solely as consisting of a union of one man and one woman. In the course of finding a constitutional right to same-sex marriage in Obergefell v. Hodges in 2015, SCOTUS invalidated Section 2 of DOMA--which excuses states from giving full faith and credit to same-sex marriages performed in other states. So what's the need for the RFMA?

In the U.S., laws declared unconstitutional remain on the books unless repealed. As women around the country are now learning with respect to abortion, if the precedent that led to a law being found unconstitutional is overruled, the old law can come back to life like a reanimated zombie. Accordingly, passage of the RFMA would be useful insurance in the event that the Court overrules Windsor and/or Obergefell--as Justice Thomas made clear he would like the Court to do in his concurrence in Dobbs v. Jackson Women's Health Org., notwithstanding the statement (which appears twice) in Justice Alito's majority that "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

As I and others have noted, Justice Alito's reassurance is not very reassuring. He overturns the right to abortion because it is not deeply rooted in American history and tradition. His basis for distinguishing abortion from the right to same-sex marriage and other facets of what have heretofore been understood as a right to privacy is that the latter do not involve what Roe v. Wade and Planned Parenthood v. Casey termed "potential life." But that's a non sequitur. If the reason there's no right to abortion is that it's not deeply rooted in history and tradition, then if a right to same-sex marriage--described in those specific terms--is also not deeply rooted in history and tradition, then there should be no constitutional right to same-sex marriage either. Had the Court in Dobbs overruled Roe and Casey on the ground that government has a compelling interest in fetal life, the distinction could do the work the majority says it does, but that wasn't the reasoning of Dobbs. Four of the five Justices who signed onto the Dobbs majority apparently don't currently intend to overrule Obergefell or any other non-abortion case based on the authority of Dobbs, but Congress nonetheless could worry that the intentions of this reactionary Supreme Court could change.

So the RFMA seems like a sound hedge. But note that it does not go as far as Obergefell. If the Senate now passes the bill--a very big "if," despite the much-ballyhooed fact that 47 House Republicans voted for it--upon the overruling of Obergefell, states could start reinforcing their SSM bans. To be sure, that would come with an important qualifier. Under the RFMA, states that forbid the celebration of same-sex marriages under their own law would be obligated to respect such marriages performed in other states. That protection would be very valuable. A same-sex couple who need to travel from Texas to Colorado to get married can plan a trip at their leisure in a way that a woman who needs to travel out of state to obtain an abortion cannot. So the RFMA would be almost as valuable as a federal law that simply codifies Obergefell.

Almost, but not quite. There is some doubt about the power of Congress to require states to give full faith and credit to marriages performed out of state. The text of the Full Faith and Credit Clause of Article IV states:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

The first sentence of that clause suggests that even absent federal legislation, states are obligated to recognize marriages performed out of state. However, a judge-made "public policy exception" permits states some leeway not to. E.g., states that disallow polygamous and incestuous marriages need not give full faith and credit to such marriages from other states. (No state allows polygamy, but state definitions of incest vary.) In the years before Windsor, there was considerable debate about the validity and scope of the public policy exception as applied to same-sex marriage. That could recur if the case is overruled.

For now, let's accept the conventional wisdom that absent federal legislation, if Obergefell were overruled, states would not be obligated to recognize out-of-state same-sex marriages. Would the RFMA be constitutional in changing that? So it seems. It would be an exercise of the power given Congress by the second sentence of the Full Faith and Credit Clause--the power to determine the "effect" of one state's "acts, records, and judicial proceedings." So concludes Steve Sanders, as reported by and agreed with by Ilya Somin. I agree as well, but I think we all would acknowledge that the issue isn't entirely free from doubt.

That's why I'd like to see the RFMA go further and simply codify Obergefell. But wait. Can Congress do that? A federal law that restored Roe v. Wade or, for that matter, a federal law forbidding abortion, should be constitutional as an exercise of the power to regulate interstate commerce, because abortion--as a medical service--counts as an "economic activity" within the meaning of the Court's leading precedents. But while marriage clearly has economic consequences, there is very good reason to doubt that the Court would deem it fully regulable at the federal level.

Congress could incentivize state recognition of same-sex marriage through the spending power, but it is not clear how many state programs that depend on federal funds involve marriage. The leading Spending power cases say that federal strings attached to funds to states must be "germane" to the funded program. Although the Court has never struck down a funding condition as failing that test, I could imagine it doing so if, say, Congress were to condition federal Medicaid funding or some other large transfer program on state recognition of same-sex marriage.

All is not lost, however. Congress has the power to enforce the Fourteenth Amendment. Two cases are particularly relevant. In Nevada Dep't of Human Resources v. Hibbs (2003), the Court upheld the Family and Medical Leave Act (FMLA) as an exercise of the 14th Amendment enforcement power. Even though a state's failure to grant state employees family or medical leave is not by itself a violation of equal protection, the Court said that given the heightened scrutiny for sex discrimination and the disparate impact that failure to grant leave has on women, Congress had considerable leeway to adopt the FMLA. The Act was therefore "congruent and proportionate,"  and hence constitutional.

The second relevant case is Bostock v. Clayton County, in which the Court--in an opinion by Justice Gorsuch joined by the Democratic appointees as well as Chief Justice Roberts--held that discrimination based on sexual orientation or gender identity is sex discrimination under Title VII. That same logic should apply to sex discrimination challenged under the 14th Amendment's Equal Protection Clause. So Hibbs plus Bostock equals substantial congressional power to protect same-sex marriage, even if the Court were to overrule Obergefell.

Case closed? I hope so, but one might still wonder whether a Court that is willing to overrule Obergefell would not also reject the idea that sexual orientation discrimination counts as sex discrimination for constitutional purposes. That's a possibility. The equal protection argument was made in Obergefell, but CJ Roberts nonetheless dissented. So he apparently thought that it's not unconstitutional sex discrimination to forbid people to marry people of the same sex (Obergefell dissent) but that it is statutory sex discrimination to deny people employment opportunities based on their sexual orientation (Bostock join). Either Roberts changed his mind between 2015 (Obergefell) and 2020 (Bostock), or he--and perhaps Gorsuch (who wasn't on the Court when Obergefell was decided)--thinks that states do not engage in unconstitutional sex discrimination when they deny same-sex marriage, notwithstanding Bostock.

Let's put aside whether that's a tenable position. For now the key point is that even if a majority of the Court is inclined to overrule Obergefell, faithful application of Hibbs could still lead a majority to conclude that Congress has the power under Section 5 (the enforcement provision) of the 14th Amendment to require all states to recognize same-sex marriages, even if performed in their own states. After all, no one thought that the Equal Protection Clause, of its own force, required state employers to provide family or medical leave. The key, for Chief Justice Rehnquist and the Hibbs majority, was that the denial of family or medical leave is in the ballpark of sex discrimination. That's enough for Congress to legislate against it.

Likewise here, given Bostock, denial of same-sex marriage is at least in the ballpark of sex discrimination. Accordingly, a federal law mandating marriage equality should be sustained as a valid exercise of Congress's power to enforce the Fourteenth Amendment--even if the Court were to overrule Obergefell.