The GOP Must Fix the Respect for Marriage Act

I must dissent in part from National Review’s editorial opposing the Respect for Marriage Act. I fully share the editors’ concern that the law does not, in its current form, represent “a compromise that protects religious freedom and democratic pluralism.” But unlike them, I would happily support the bill if this pivotal flaw were to be fixed. If, as now seems unlikely, the Senate were to adopt Mike Lee’s amendment, I’d be in.

Before you start writing me an email in all caps, please understand that I’m not making “the conservative case for gay marriage” here — not least because, in this area, I’m not especially conservative. Like Donald Trump, I think gay marriage is “fine,” and I have for a long time. I made the case for gay marriage in my 2014 book, and I’ve been open about my support for it since then. I respect and understand those who disagree with me, but I have a different view nevertheless. Now, as ever, my objections are not to the idea per se, but to the absurd pretense that the 14th Amendment mandates recognition of gay marriage — it absolutely does not — and to the idea that the recognition of gay marriages demands a commensurate reduction in the conscience rights of the dissenters, which, again, it absolutely does not. Gay marriage itself? I’m for it.

There are no obvious constitutional problems with the Respect for Marriage Act as drafted. The Democrats are selling the measure as the “codification of Obergefell,” but, in reality, it is no such thing. In effect, the bill is a reverse-DOMA, and, under a proper reading of the Constitution, DOMA was a perfectly legitimate exercise of Congress’s power to set the rules at the federal level. Unlike Obergefell, the Respect for Marriage Act does not rely upon a false reading of the Constitution for its authority, and, because the one element of the bill that does touch the states is warranted by an originalist reading of the full-faith-and-credit clause, it does not faithlessly claim powers that are not reserved to Congress. As the dissents in Obergefell correctly noted, the definition of marriage is an issue for legislatures, and here we have a legislature defining marriage. Certainly, many Americans will dissent on the merits from that definition. But that is a separate question. Procedurally, this is exactly how things are supposed to work.

Indeed, structurally speaking, there’s a great deal to like here. Even if I were opposed to gay marriage, the constitutional originalist in me would much prefer to have 51 laws that recognized gay marriage (one federal law, and 50 state laws) than to have Obergefell. Like Roe, Obergefell was a willfully corrupt lie that did substantial damage to our legal system, and, in turn, made the restoration of the Constitution as it was written that much harder. From a certain perspective, passing a federal law that echoes the effects of Obergefell might look as if it were concretizing this lie, but paradoxically enough, it might actually end up doing the opposite. The primary reason that the Respect for Marriage Act has been introduced is that, earlier this year, the Supreme Court overturned Roe v. Wade, and that this has caused some progressives to fear that the other decisions that rely upon the ludicrous doctrine of “substantive due process” will be next to go. In a perfect world, those progressives would be correct: Substantive due process is a pernicious blot on the escutcheon, and any self-respecting Court would apologize for its history and nix it entirely. In reality, however, that is unlikely to happen, because nuking substantive due process would yield real-world outcomes that the justices probably wish to avoid. If the issues that currently rest upon substantive due process were resolved legislatively, however, the pressure on the Court to sustain the doctrine in the name of stability or reliance interests or social harmony or whatever would be diminished, and Clarence Thomas could get to work with his flamethrower.

From the perspective of NR’s editors, the substitution of legislative recognition for judicial invention would presumably not represent an improvement over the status quo of, say, 2004. But it would undoubtedly represent an improvement over the status quo of today. Practically speaking, gay marriage isn’t going anywhere. And because it’s not going anywhere, having its contours determined by legislators exercising their authentic powers rather than by activists on the Supreme Court contriving justifications out of whole cloth — or, as is now the case, by judges who are trying to work out how many of those whole-cloth justifications they can safely reverse — would represent a slight improvement.

Providing, that is, that the legislation in question contains robust protections for those who have a different view. In my estimation, the scope of Americans’ conscience rights is ultimately more likely to be improved by our fast-evolving First Amendment jurisprudence than by the statutory text of this or that bill. But there is no good reason for Republican lawmakers to rely upon that expectation when their own jobs accord them the chance to write sturdy protections into the law, and thereby to achieve the “compromise that protects religious freedom and democratic pluralism” that the editors complain does not exist. Until those lawmakers do just that, I shall join my colleagues in opposing the bill. After that, though, I’ll happily support it.