CONGRESS PROTECTS GAY MARRIAGE.

• Author: Shackford, Scott

CONGRESS IN DECEMBER passed the Respect for Marriage Act, granting formal federal recognition to same-sex and interracial marriages. President Joe Biden quickly signed the bill into law.

While both types of marriages were already protected under federal law, that protection was afforded by the Supreme Court, not Congress. In the wake oiDobbs v. Jackson Women's Health Organization, the 2022 case in which the Supreme Court overturned the federal abortion protection established by its 1973 decision in Roe v. Wade, supporters of gay marriage worried that the Court might also revisit that subject.

Hence the Respect for Marriage Act, which included compromises aimed at attracting enough Republican votes to avoid a filibuster in the Senate. The law requires the federal government to recognize same-sex marriages performed in states where they are legal. That ensures gay spouses will continue to enjoy the privileges, rights, and benefits federal law has long afforded straight spouses, such as the marital tax deduction, joint filing, and Social Security benefits.

Sen. Tom Cotton (R-Ark.) said he opposed the bill because it interfered with an issue that the Constitution leaves to the states. Yet many federally recognized privileges are contingent on state marriage licenses, and there is no sign that Congress is inclined to scale back those benefits.

The Respect for Marriage Act does not require states to legalize same-sex marriage. Many states still have bans on the books. If the Supreme Court ever decides to overturn Obergefell v. Hodges, the 2015 decision mandating legal recognition of gay marriages, those bans could take effect again.

The new law does require states to recognize same-sex marriages legally performed in other states. While that provision may seem contrary to federalist principles, states historically have recognized marriages performed in other states with different rules (regarding minimum ages or marriages of cousins, for example). Although the courts have not yet resolved the issue, such accommodation is arguably mandatory under the Constitution's requirement that "full Faith and Credit...