News - Capital University Law School

Professor Brown: Congress Needs to Protect Same-Sex Marriage

12/6/2022  - 

In anticipation of Congress’ passage of the Respect for Marriage Act, Capital University Law School Professor Mark R. Brown cautions that the new law would not offer equivalent same-sex marriage protections that were upheld in the U.S. Supreme Court’s landmark 2015 Obergefell v. Hodges decision. 

Brown, a constitutional law expert, says in an opinion piece for that Obergefell provided that states must recognize same-sex marriages. “The proposed federal law, in contrast, only requires that states give full faith and credit to same-sex marriages that are performed elsewhere,” he writes.

“States (like Ohio) are not prevented by the act from reverting to their old ways (and refusing to license same-sex marriages) should Obergefell be overturned.”

The issue came to light in June after the High Court overturned Roe v. Wade, thus restricting abortion rights. At the time Justice Clarence Thomas intimated that the Court also might see a path to overturn Obergefell.

Brown says codifying Obergefell is hobbled by politics. Democrats would need Republican support to do so, which they likely won’t get. Furthermore, he writes, “Any court willing to overturn a fundamental right after just seven years would likely be equally willing to invent constitutional reasons to prevent its statutory replacement.”

Congress, of course, has other options, Brown says, noting that those also are likely to be challenged. “Better (in my opinion) to be on the right side of history and pass the legislation needed to fully protect same-sex marriage,” he states. “Let the chips (and Thomas) fall where they may.”