A Case for the Respect for Marriage Act

Walter OlsonThe Respect for Marriage Act, which has just gotten past cloture in the Senate with 12 Republicans joining all Democrats in support and isconsidered likely to pass before year end, would 1) repeal the old Defense of Marriage Act of 1996 and 2) forbid states from denying full faith and credit for purposes of state action to marriages lawfully contracted in other states on the basis of individuals ’ sex, race, ethnicity, or national origin. It advances an obviously legitimate interest—shoring up the reasonable reliance interests of families that cross state lines—and does so in a way that is in accord with the Constitution, a question Congress should ask itself with every enactment.On the constitutional question, the Full Faith and Credit Clause of the Constitution (Art. IV, Sec. 1) gives Congress explicit power to prescribe the manner in which legal acts arising in one state shall be given effect in another.That is what the operative section of the act does. At the same time, it does not presume to force states to issue new marriage licenses; that reticence is consistent with the federalist reality that marriage law has generally been a matter for the states.In its Obergefell and Windsor rulings, of course, the Supreme Court has already required states to issue marriage licenses and recognize marriages while striking down DOMA. RFMA would thus have no immediate effect at all to speak of. But it would shore up most (not all) of the practical out...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs