Congress has passed the Respect for Marriage Act, and it will become law upon President Biden’s expected signature. In Bill protecting same-sex, interracial unions clears Congress
Mary Clare Jalonick reported for The Associated Press,
The legislation would not require states to allow same-sex couples to marry, as Obergefell now does. But it would require states to recognize all marriages that were legal where they were performed and protect current same-sex unions if the Supreme Court decision were overturned.
This is a preemptive act, in case the same-sex marriage right recognized in Obergefell v. Hodges is overturned. As I wrote on Facebook, This is a very good bill, in my view consistent with Federalism and the 14th Amendment.
The 14th Amendment states that
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [my emphasis]
Note that U.S. citizenry supersedes state citizenry, in terms of “privileges or immunities,” i.e. individual rights. This Amendment, one of the so-called “Civil War Amendments,” was a monumental advance for individual rights. The U.S. Constitution now made explicit what was implicit from the Founding—that no longer can any state violate the Federally guaranteed rights of any American, by, say, enslaving them, denying them the right to vote, or violating any other inalienable individual right.
Of course, the Respect for Marriage Act is wholly unnecessary as long as Obergefell v. Hodges, the pro-14th Amendment SCOTUS ruling that nullified state laws banning same-sex marriage, is not overturned. But it is not at all certain that the SCOTUS will not overturn Obergefell given the horrendous anti-Constitutional reasoning behind the shockingly reactionary Dobbs ruling, which ignored the Ninth Amendment and 14th Amendments and violated the Constitution’s philosophic conscience, the Declaration of Independence, to overturn Roe v. Wade.
* [Biden signed the Respect for Marriage Act into law on December 13, 2022, USA Today reported.]
Related Reading:
Gay Marriage and Individual Rights
ObamaCare and Gay Marriage Rulings: One Loss and One Win for the Right
In SCOTUS’ Draft Opinion Overturning Roe Abortion Ruling: Double Standards of Left and Right Exposed
Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty by Timothy Sandefur
3 comments:
Government hasn't the moral or legal authority to dictate any contents of any contract. By moral and legal, I mean, by the primordial fact of human nature as of the beginning of human existence, as per human life, its maintenance and its improvement.
As of language, and more so as of written language, we could understand and communicate morals, meaning morals solely by reason, automatically reason, since it's as per human life, its maintenance and its improvement. As of, in particular, written language, we could formally encode one and only one moral and call that, and only that, as encoded, law, a unique rule dealing with that, and only that, moral.
Jumping a chain of facts and logic, that moral is: don't initiate physical force. A rule duly established dealing with only that moral is a law. Any other is not a law, no matter how established. That law, at any and all stages of its development, is a recognition of human nature and the needs of human life, its maintenance and its improvement. A physical mechanism of manpower and capital, in a word, government, is established for the sole purpose of enforcing that law in human relations.
Concerning contracts, all parties can contract about anything and in any way (by any provisions agreed on by all parties). Since when may government, as here defined, say anything about it or dictate anything about it? If it does, it ain't a government and it ain't enforcing any rule which, as here defined, can be called a law. Legally, it can be disobeyed since it's outside its moral and legal bounds, no matter what "rule", however established, it is enforcing. Morally, whoever might disobey, must first consider the purely practical issues, to their own selves. Otherwise they are as morally free as legally free.
Law and government can, and may, do one and only one thing concerning contracts: forbid and annul any provision or other allowance for initiatory physical force within the parties or upon anybody outside the parties, and require that ALL parties freely agree to the whole contract.
Given all this, what's this whole thing of "marriage laws"? It looks like government, by rules established by legislation, regulation or judicial decision, is telling us what a marriage is and how to provide for it, and who the parties can be. Such rules ain't laws and nobody, least of all governments, or crooks, have any business recognizing them as anything and enforcing them.
The whole subject of marriage and the very word, marriage, are private matters, as are all contracts, and any concept called marriage can be anything, and it doesn't have to be called marriage. But, the contents of the contract, or of any contract, cannot include initiatory physical force. That's all the law and government has any business caring about. And the parties can end contracts. So, if it's a "marriage", ending it can be called "divorce" Given all this, by the same token, what's this whole thing of "divorce laws"? And so on.
Mike, I see no problem with marriage laws that standardize generally accepted “privileges or immunities” of marriage so long as the rules don’t dictate who can marry whom and couples are free to make alternate contractual arrangements. I don’t think marriage laws as such are outside the scope of the government's role as protector and enforcer of contracts, any more than corporate laws are. What I object to is marriage licensure, which should be abolished. You don’t need a license to start a corporation. You shouldn’t need a license to marry.
Does this mean the relationships entered into by couples which make alternate contractual arrangements are not, and can't be called "marriage" if the arrangements don't adhere to "privileges or immunities" standardized by law? If so, that's ok as long as any offspring of such arrangements are considered legitimate and not illegitimate. I can't think of any other proviso for that being ok. So the relationship of alternate contractual arrangements isn't a "marriage"? Big deal. The parties can call it by a different name which they find fitting. Likewise, parties can form business relationships which have all the characteristics of corporations but don't adhere to things standardized by corporate law. If these relationships can't be called corporations, they can be called by different names. That's ok, too.
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