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Constitutional law expert explains what could happen with same-sex marriage bill

House passed the bill on Tuesday
Capitol Hill Capitol Building Capitol Dome
Posted at 6:40 AM, Jul 20, 2022

SAN DIEGO (KGTV) - The U.S. House of Representative moved forward with the Respect for Marriage Act — an effort to codify and add more protection for same sex marriage in the U.S.

"Say that if a state where to ban a marriage, which states cannot do, if a state were to ban marriage if you were married in California or another state where it's legal, you have the right to have that marriage recognized in any other state,” said Nancy Marcus, a constitutional law expert from the California Western School of Law.

Marcus has been in the legal field and constitutional law for decades. She said the reason for the bill is in response to Roe v. Wade.

"The court threw the question back to the states. So, this federal law is anticipating that the court might do the same thing with same sex marriage,” Marcus said.

Tuesday’s vote was just the first step of the bill. It still has to make its way through Senate, and ultimately signed by President Biden before it could become law of the land.

There’s some who wonder about what could happen to the possible new law once it’s enacted.

"I would say they can review the constitutionality. The Supreme Court generally has the power to review acts of Congress and decide if they're constitutional,” Marcus said.

Marcus said a couple of things would need to happen before the possible new law would be shot down by the Supreme Court.

"There would have to be a person to bring that case to the courts in the first place. And they would have to have standing. And, second of all, they would have to have some provision of the Constitution to point to to say the Constitution's been violated; here's the provision of the Constitution that's been violated,” Marcus said.

But, in Marcus' expertise and based on what precedent she said that’s in place, she thinks that shouldn't happen.

"Since there's really no constitutional grounds or someone who would have standing, I think it would be a very challenge to bring. And I doubt that we're to revisit the marriage issue it would be a challenge through this particular federal statute,” Marcus said. "But this is a court that doesn't necessarily follow precedent. So, it's very hard to predict what is going to happen here."