Overturning Obergefell Could Be on the Horizon

Dec 12, 2022

WASHINGTON, D.C. – When Congress passed the “Respect for Marriage Act” (RFMA) last week, this action can actually create the perfect scenario to overturn the U.S. Supreme Court’s 2015 5-4 opinion in Obergefell v. Hodges regarding same-sex marriage. 

Prior to 2015, Liberty Counsel won about 50 cases defending marriage as one man and one woman. Then the 5-4 Obergefell opinion was released. Three of the five Justices in the slim Obergefell majority are no longer on the Court – Kennedy, Breyer, and Ginsburg. Chief Justice John Roberts issued a stinging dissent, as did Justices Thomas and Alito. Justices Gorsuch, Kavanaugh, Barrett, and Jackson have since joined the High Court. Therefore, the slim majority in 2015 is now gone. 

In his dissent, Chief Justice John Roberts wrote, “Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening…. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.” 

 “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” 

The RFMA cannot define marriage for the states. In 2013, the Supreme Court in United States v. Windsor, struck down part of the Defense of Marriage Act (DOMA) that defined marriage for ALL the states as the union of one man and one woman. The Court noted that domestic relations and the definition of marriage is “an area that has long been regarded as a virtually exclusive province of the States.” In other words, the states, not the federal government, have the right to regulate marriage. 

The second part of DOMA said that one state did not have to recognize same-sex marriage of another state. This is the provision that the Respect for Marriage Act repealed, and now it requires one state to recognize the same-sex marriage of another state.

Until now, the biggest obstacle to overturning Obergefell was based on those who relied on the flawed decision to obtain a marriage license. What happens to these licenses? The consequence of overturning Obergefell is now off the table and is no longer a policy reason for upholding the opinion. In other words, it is easy to attack Obergefell on the merits but the consequence of overturning it could, until now, result in chaos. The merits argument of why Obergefell should be overturned is easy. The policy argument that doing so would cause a huge disruption has always been the most difficult to overcome – until now. 

As a result of RFMA, when Obergefell is overturned, those who obtained licenses will be “grandfathered” in and the licenses will remain valid. However, like abortion, the Supreme Court will overturn Obergefell and states will then be free to return to their laws prior to 2015 where they defined marriage as the union of one man and one woman. 

Liberty Counsel’s case involving Kim Davis may be the vehicle to help overturn Obergefell. This case is working its way back to the Supreme Court where one of the arguments will be that Obergefell was wrongly decided. Justices Thomas and Alito have already invited future challenges to the 2015 Obergefell marriage case since the decision was never constitutional.   

Justice Thomas previously wrote, “Davis found herself with a choice between her religious beliefs and her job.” He continued, “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.” Justice Thomas said “the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” 

The drafters and supporters of RFMA did not intend for the consequence that is forthcoming. But it will come. Like Roe, the days of Obergefell are numbered. 

Liberty Counsel Founder and Chairman Mat Staver said, “While I am disappointed that the ‘Respect for Marriage Act’ passed both houses of Congress, the bill will be the undoing of the Supreme Court’s 2015 same-sex marriage opinion in Obergefell v. Hodges. The advocates of RFMA may celebrate today, but that celebration will not last. Lawmakers have unwittingly created the perfect scenario to overturn the unconstitutional Obergefell decision.” 

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