In an expected – and unnecessary – move, the House Democrats got plenty of GOP RINOs on their side Thursday to pass HR 8404, the obnoxiously called “Respect for Marriage Act,” a bill that does not respect the religious ceremony of marriage in any way, and which doesn’t even acknowledge the clear instructions of the U.S. Constitution that all those so-called “lawmakers” swear to uphold.
The vote was 219 Democrats in favor (zero voted against), 39 Republicans in favor (with 169 opposed and four not voting), and the bill now awaits President Biden’s signature.
As Ryan Foley writes for Christian Post, the Senate already has passed its version, on a 61-36 vote, and it is “amended to include religious liberty protections that critics say do not go far enough to protect Christian business owners.”
Further, he explains:
“If approved by President Joe Biden as expected, the bill would codify the 2015 U.S. Supreme Court case Obergefell v. Hodges, which established a right to same-sex marriage, into federal law. It repeals the 1996 Defense of Marriage Act (DoMA), which defines marriage as a union between one man and one woman at the national level. The bill requires states to recognize all marriages performed in other U.S. states as valid regardless of the sex of the participants.”
This coverage is a bit problematic, since no government entity or figure can “establish a right” to anything. Government only exists by infringing on the God-given, a-priori rights we already have. It demands our property/income to pay its bureaucrats, police, judges, and so-called “lawmakers,” when, in reality, the Law is Natural Law, written by God, and politicians merely are “statute-writers,” supposedly constrained by the Constitution.
What would better describe the Obergefell v. Hodges decision is that it saw the majority of Supreme Court Justices claim that same-sex marriages had the same statutory status as heterosexual marriages, a move that nullified the 1996 Defense of Marriage Act, which had seen the GOP-led House and Senate claim that states that only recognized heterosexual unions need not recognize same-sex marriages from out of state.
But as I wrote in mid-November, when the Senate passed its version of this DIS-respect for Marriage Act, these controversial moves, going back to 1996, miss a lot of important facts that we can remember.
First, it’s clear that the proponents of this maliciously-named statute want to command state governments to recognize same-sex marriages from out of state.
Well, as noted above, the U.S. Supreme Court already has ruled that the 1996 DoMA is unconstitutional. As the Legal Information Institute notes:
“This law specifically defined marriage as the union of one man and one woman which allowed individual states to not recognize same-sex marriages that were performed and recognized under other states’ laws. Nonetheless, this law's sections were ruled unconstitutional by the United States Supreme Court in cases such as United States v. Windsor (2013) and Obergefell v. Hodges (2015).”
The deeper point is something I tried to stress when I wrote a 2006 Mises Institute piece called, “Don’t Let Government Define Marriage (Or Optimal Child-Rearing Environments)”.
That’s the fact that, regardless of how much conservatives in various states or on a national level might want to define a “marriage” as a union between a man and a woman, the “Full Faith and Credit” clause of the Constitution requires all states to recognize as legal any legal contract or document from another state.
Thus, even if a state legislature were to pass a statute claiming that only male-female marriages will be recognized as legally binding (affording all kinds of state benefits for matters such as hospital visitation and estate management that same-sex couples might not receive without that official “marriage” label attached to their partnership), said state government would have to recognize as legal any same-sex couple with a legal marriage certificate from a state allowing gay marriage.
The fact that a particular majority in Congress passed DoMA to claim otherwise does not change what is written in the Full Faith and Credit clause of the U.S. Constitution.
Which, of course, is reiterated by the fact that, in those two instances, the Supreme Court did the Constitutional thing and slapped down DoMA. And that’s why the House didn’t need to pass this new bill, and why the 12 RINOs in the Senate didn’t need to support it, either.
But there are other nuances to learn, one of which might surprise a few people who had been unaware of the Full Faith and Credit clause. First, one must acknowledge that, even if a Supreme Court majority rules a state or federal statute “unconstitutional,” the ruling does not “eliminate” the statute. The statute still exists.
It’s simply a change in how courts and prosecutors will proceed when considering whether to execute the statute and punish potential transgressors.
A Supreme Court ruling indicates to lower-level police, prosecutors, and judges that, until the Supreme Court were to see a change in members, any person apprehended and prosecuted for transgression of a statute that the SCOTUS previously found unconstitutional likely would, upon appeal, see his or her case brought in front of those same SCOTUS judges, who, if they were consistent, would rule in favor of the defendant. That prospect inspires cops and prosecutors to disregard statutes found by the SCOTUS to be unconstitutional, because the lower-level folks know their efforts and the money spent on the prosecutions would be for naught.
So, although HB 8404 really doesn’t do anything other than wipe away a federal statute (DoMA) that the SCOTUS already has made null, there is wiggle room for the supporters of the bill to simply tell people, “Well, the SCOTUS twice already struck down DoMA, but we’re just putting in this statute to reiterate what the Full Faith and Credit clause already says.”
Why wouldn’t the D.C. politicians say that?
First, it’s possible they are unaware of this obvious fact. After all, they swear oaths to uphold their lovely Constitution, but they rarely do.
Second, and perhaps much more important, if they were to actually acknowledge the Full Faith and Credit clause of the U.S. Constitution, they would have to admit that any state gun license must be recognized as valid in any other state.
Of course, it’s unconstitutional and immoral for any federal, state, or local political gang to demand that people get “licenses” or anything else from them in order to exercise the inherent, God-given right to keep and bear arms, and the Second Amendment purportedly protects that right. But perspicacious folks might want to bring this up to any of the leftist charlatans who cite the Full Faith and Credit Clause re marriage “licenses” or who want to push a federal statute mimicking what the clause already insures.
To close, it’s important to note that the most fundamental aspect of this “marriage” problem is the trouble created by shifting marriage out of its proper place in the religious sphere, and getting the state (polis) involved in “licensing” or “recognizing legal” marriage. As I wrote in 2006:
“A state-sanctioned marriage is a government-proffered benefit, granting unique government treatment by law, and forcing certain actions by private industry under the law. It grants the sole license of conducting legal marriages to a select few, and excludes others from operating freely to conduct legal marriages. These facts alone stand in sufficient contravention to the concept of individual liberty to warrant opposition to state-licensed marriage. George and Martha Washington never had a marriage license, and most Americans didn't need them until the mid-1800s. It is likely they would be appalled by the degree to which we have gotten the government involved in a sacred religious ceremony.”
The original, 19th Century U.S. attempts to involve the state in marriage often came from people who didn’t want black and white couples to wed. Since then, generation after generation has been fighting over what the government will do — as is always the case with pushing something into the Tragedy of the Commons, ie into the “government” sphere.
Until conservatives recognize that any state involvement in marriage invites the political corruption of God’s religious ceremony, this will be a problem. And states all will have to recognize same-sex marriages from out of state.
The final question remains: what will happen to private business owners? Will they be free to abide by their religious convictions?