On 13 December 2022, United States President Joe Biden signed into law the so-called “Respect for Marriage Act”. The act purports to “codify” the holding of the 2014 United States Supreme Court case of Obergefell v Hodges, which invalidated laws in any of the 50 states that limited marriage to a union of one man with one woman. Obergefell, of course, did not respect marriage. Rather, the decision rejected marriage as it has been practised for millennia in western societies and replaced it with a morally and politically charged fiction. It is not surprising, then, that the Respect for Marriage Act is itself a piece of fiction, both in why it was passed and what it purports to do.
The act was introduced in Congress by some members of the Democrat Party in the wake of the 2022 Supreme Court case of Dobbs v Jackson Women’s Health Organization, which overruled Roe v Wade. Roe effectively had done to states’ abortion regulations what Obergefell did to their marriage laws, namely abrogated them under a mystical emanation from the mythical penumbra of enumerated constitutional rights. This is not incidental because both Roe and Obergefell turned on the oxymoronic legal notion of “substantive due process”, itself a fiction invented to impute specific rights to the US constitution that the constitution neither contains nor protects.
The 14th amendment to the constitution provides in relevant part that no state “shall deprive any person of life, liberty, or property, without due process of law”. As rationally applied, the clause refers to interests that are accounted for in the constitution. But the Supreme Court was dissatisfied with the purely procedural protection of the due process clause. So, in the early 20th century, the court began to assert that certain alleged substantive rights should also be protected, even if they are found neither in the constitution nor American common law. Thus, the juridical myth of “substantive due process” was invented to protect fictional rights created ex nihilo. This includes the right of a woman to kill her unborn child (Roe) or of two people of the same sex to marry (Obergefell).
Enter Justice Clarence Thomas’s concurring opinion in Dobbs. Justice Thomas never passes up the opportunity to point out the absurdity of the phrase “substantive due process”, or the illegitimacy of the court to fill it with the flavour of the month of fictional rights. In his Dobbs concurrence, he said: “In future cases, we should consider all… substantive due process precedents, including… Obergefell. Because any substantive due process decision is demonstrably erroneous, [the court has] a duty to correct the error established in those precedents.” This has caused same-sex marriage activists to sound the alarm that Obergefell could go the way of Roe, and thus that states could once again limit marriage as between one man and one woman.
But this is very highly unlikely to happen. The alarm is less a sincere fear than a political rallying point. The court cannot just come to work one day and decide to reverse Obergefell. Even to reconsider the ruling, two things would have to occur. First, a state would have to pass some new legislation either prohibiting same-sex marriage or somehow treating it differently from heterosexual marriage. Second, the Supreme Court would have to (eventually) reverse an appellate court that would certainly strike down such a hypothetical state law. The first is very unlikely to occur; and the latter is even less so. Thus, the impetus of the Respect for Marriage Act is the fiction that Obergefell is under any danger of being reversed.
But the act is also fictional in what it purports to accomplish. In the popular mind, it makes same-sex marriage a federal right, such that even if Obergefell were overruled and a state tried to pass legislation against same-sex marriage, the act would prevent it. The act would not, because Congress has no such authority. Rather, the act contains two relatively toothless legal provisions. First, it requires all states to recognise same-sex marriages that are performed in other states. But this is already comprehended by a clause in the constitution providing that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Second, the act provides that (in the unlikely event that Obergefell is reversed), the federal government would recognise same-sex marriages in states that permit it. In other words, it is a literally meaningless provision.
But to say the act is a work of fiction is not to say that it is without important moral and social effects. The law is a teacher. And while the so-called Respect for Marriage Act has little if any legal import, it is still a sign of a broader social decline, in which natural institutions, such as marriage, are replaced by fictional ones; and in which those who hold to the natural institutions are moved further to the margins of social, legal and political life.
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