Why Any Federal Law Defining “Marriage” Is Unconstitutional

While Republicans and Democrats are having a tug of war in defining "marriage," they have involved the government in a sacred religious ceremony, stepping into unconstitutional territory (6 min read.)

Photo by Carly Rae Hobbins on Unsplash

What an incredible difference the 2022 midterm election made for the Republican Party—the one political organization many conservatives rely upon, and hope the party will uphold traditional Christian family values and channel these values through policies and decision-making in Congress.

In recent years, many Americans have come to view the Grand Old Party (GOP) as responsible for “conserving” personal liberties, and the social and moral fabric of the Republic. We look to the GOP as the mature sibling of the Democratic Party, and to safeguard America as our Founding Fathers intended when they framed the Declaration of Independence and the Constitution.

In mid-November, Republican Reps. Elise Stefanik of New York was re-elected House Republican Conference Chair, and Tom Emmer of Minnesota was elected House Majority Whip.

Congratulations—

I would’ve finished the above sentence but stopped short after learning they voted in favor of legislation proposed by the Democratic Party to codify “same-sex marriage” in federal law.

Stefanik and Emmer were among 47 Republicans in the House of Representatives who joined Democrats in mid-July to pass the “Respect for Marriage Act” (RMA) which would repeal the largely unenforced “Defense of Marriage Act” (DOMA.)

Enacted in 1996, DOMA defines marriage as a union between a man and a woman under federal law and allows individual states not to recognize a “same-sex marriage” performed and legally recognized in another state. DOMA also clarifies that a “spouse” is someone of the opposite sex who is a husband or a wife.

In contrast, RMA would recognize under federal law a “marriage” between two individuals performed by a state, and require all other states to recognize that “marriage” regardless of the “sex, race, ethnicity, or national origin of those individuals.”

Furthermore, according to Republican Senator Rob Portman of Ohio, who also voted in favor of RMA, the bill does not authorize the federal government to recognize polygamous marriages.

For now, that is—because there is no bottom to pandora’s “marriage” box and an excellent opportunity for pressure groups and activists to fight for the “right” to a federally recognized “polygamous marriage.”

Some habits are hard to change. For example, Stefanik and Emmer voted in May 2016 among 43 Republicans for an amendment requiring any federal contractor to institute a policy refusing to “discriminate” individuals who identify under the umbrella of “lesbian, gay, bisexual, and transgender” (LGBT.)

At one point, Stefanik also backed the “Fairness for All Act” (FFAA) in February 2021, a bill that would prohibit “discrimination” based on “sex, sexual orientation, or gender identity, while providing certain benefits and exemptions to religious providers.” However, she eventually withdrew her support after mounting pushback from conservatives who argued that the bill offered minuscule protections for religious liberty.

In effect, the FFAA was a “moderate” version of the “Equality Act” (EA) proposed by the Democratic Party, which aimed to amend the “Civil Rights Act of 1964 to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation.”

The EA would restrict employers with 15 or more employees from “discriminating” them based on “sexual orientation” or “gender identity.” It would also demand that individuals be given access to a “shared facility,” including a restroom or locker room, based on their personal “gender identity.”

Which political party carves America’s path?

One can observe that many Republicans attempt to hinder the pace of America on par towards cultural erosion, often supported by a tide of conservative resistance—but a trajectory they have nonetheless seemingly resigned will come to pass. At the same time, their Democrat counterparts are all too willing to push forward America’s voyage towards moral decline at a much faster rate.

Pressure group lobbyists who advocate for “rights” under the LGBT umbrella channel their activism through the more sympathetic Democratic Party, thus setting the trend of “progress.” At the same time, Republicans find themselves fighting to “conserve” traditional marriage; this struggle, this resistance can seem futile because over 70 percent of Americans say “homosexuality should be accepted” and about 60 percent say “legalization of same-sex marriage is good for society.”

Even Donald Trump, as a Republican, became the first American president to enter office already supporting “same-sex marriage,” calling the act “settled” by the U.S. Supreme Court (SCOTUS.)

The idea of marriage—that is, the psychological and emotional benefits and economic advantages of a monogamous union between a man and a woman—must regain momentum at the grassroots level. It must be “sold” to emerging youth as “progress” towards good mental health and financial stability. The desire for children will naturally follow to a lesser or greater extent. But such a, dare I say, radical idea must be viewed by the target population as “progress” in their pursuit of happiness and not “going backwards.”

Thus, the Republican Party could go on the offense insofar as supporting pro-marriage and pro-family initiatives at a local level. But, unless there is a radical change among Republican lawmakers in the next few years, it might take at least a decade to educate an uprising of Americans who enter the GOP with a commitment towards upholding the moral backbone of society—and the Constitution.

Is DOMA or RMA even constitutional?

We note that twelve Republicans in the Senate helped to advance a final vote for RMA in late November. But since the bill’s text differs from that passed in mid-July, it must return to the House of Representatives for an additional vote.

Let us not forget that New York Democrat Rep. Jerrold Nadler introduced RMA with claims to repeal the federal statute DOMA “and ensure respect for State regulation of marriage, and for other purposes.”

Interestingly, the SCOTUS had already ruled that DOMA was unconstitutional in 2013 (United States v. Windsor) and then again in 2015 (Obergefell v. Hodges.) Furthermore, regardless of the desire to codify “marriage” as a union between any two individuals in federal law, the “Full Faith and Credit Clause” of the Constitution addresses the duty that all states have to respect the “public acts, records, and judicial proceedings of every other state.” In other words, passing DOMA in the first place did not change what is already enshrined in one of America’s founding documents.

With the above said, even if a Supreme Court rules a state or federal statute as unconstitutional, that statute still exists—what changes are how courts, prosecutors and judges will proceed when evaluating whether to execute that particular statute. Thus, RMA merely cleans the DOMA federal statute that the SCOTUS already struck down on two separate occasions.

The biggest problem with RMA and DOMA is driving away the idea of marriage from a religious context and forcing the state to “recognize legal marriage.”

Is this idea entirely new? No.

If we dig back in time, we learn about anti-miscegenation laws criminalizing interracial marriages from the late 17th century through the late 1960s, until the SCOTUS ruled such laws unconstitutional via the 14th Amendment adopted in the late 19th century.

So here’s another radical thought.

How about We, the People, do not allow the government to define marriage?

Period.