The Respect for Marriage Act HR 8404 repeals the so-called Defense of Marriage Act.  DOMA.  The new law - signing of which is imminent - compels states to give full faith and credit to a marriage lawfully entered in any other state or the District of Columbia, Puerto Rico, etc.  It does not compel states to themselves recognize same sex marriage, and it declares the national government will respect so-call freedom of conscience laws.

One wonders what is the Constitutional basis for this law and if it is subject to effective attack.  I suppose that since the 14th Amendment makes no reference to gender originalism will be little help to the proponents.  Similarly Brown v. Board of Education could not claim support in contemporary understanding since D.C. public schools were segregated by race.

The sponsors cite as Constitutional support for H.R. 8404. The Bill's sponsors declare "Congress has the power to enact this legislation pursuant
to the following:
Article IV, Section 1 Full faith and credit
Fifth Amendment, Section 5 Due Process
Fourteenth Amendment, Section 5 Equal protection of the laws - Enforcement
Article I, Section 8, Clause 18 Necessary and proper

But we remain entrapped by the enumerated powers doctrine - with a national government which adheres to the founding fiction of state sovereignty.  That notion should have died with the post-Civil War Amendments.  They set the terms for restoration of secessionist state governments.  Of course the southern states promptly moved to render the 14th and 15th Amendments - promising equal protection and voting rights - a nullity.

What the Respect for Marriage Act does Not do is codify Obergefell v. Hodges - the 2015 decision compelling states to  allow same sex marriage.  So Clarence Thomas's dissent in Dobbs v. Jackson Women's Health - threatened even the recognition of the right to use contraceptives.  The Court majority could undermine the new Act by freeing states to repeal laws respecting same sex marriage.  But that scenario seems unlikely to me - since ever at this moment a dozen Republican Senators supported it.  Decrying marriage is a losing proposition.

- GWC  12/11/2022