The Respect for Marriage Act Would Allow the State to Regulate Domestic Relations
Originally published at National ReviewI have been puzzled about the urgency to pass the Respect for Marriage Act before the end of the current Congress. Despite Justice Thomas’s dictum in his Dobbs concurrence that Obergefell (which created a constitutional right to same-sex marriage) should be overturned, I cannot discern a reason to force such a case onto the Court’s docket. If some traditional-marriage activists tried to do so, they would almost surely fail, but even if four Justices eventually voted to hear such a case, it would be years before the matter would be ripe for ultimate adjudication.
So, why the rush? In part, I think it is to enable immediate federal regulation of marriage law. Bureaucrats can’t promulgate rules based on a Supreme Court ruling: They need an enabling statute. Enter the RFMA. By federalizing marital law, the Congress could unleash the power of the administrative state over an area of domestic relations where the federal government has heretofore had little direct power. Imagine the consequences.