President Joe Biden signed the Democrats’ same-sex marriage bill amid fanfare and celebration, but an attorney-led Christian ministry that says it won nearly 50 cases defending marriage as between one man and one woman before the Obergefell decision asserts the passage of the legislation can now “actually create the perfect scenario to overturn” the Supreme Court’s 2015 5-4 ruling.
Biden signed the Respect for Marriage Act (RFMA) Tuesday.
Earlier in December, the Senate voted 61-36, with the help of 12 Republicans, to pass the measure. The House then voted in favor of the legislation, 258-169, with the help of 39 Republicans, sending it to Biden.
In a press statement last week, however, the nonprofit Liberty Counsel wrote the passage of the legislation is “a strategic blunder by advocates of same-sex marriage.”
When Congress passed the 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. Read Mat Staver's legal strategy here:https://t.co/l6BaLQzeZb
— Liberty Counsel (@libertycounsel) December 12, 2022
“Rather than a victory, the ‘Respect for Marriage Act’ will make easier the argument to overturn the U.S. Supreme Court’s 2015 5-4 opinion in Obergefell v. Hodges regarding same-sex marriage,” Liberty Counsel asserts, explaining:
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.
Liberty Counsel quotes from Chief Justice John Roberts’ dissent in Obergefell:
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?
“Until the passage of the “Respect for Marriage Act,” the biggest hurdle to overturning Obergefell was not on the law but on policy,” Liberty Counsel explains. “Obergefell, like Roe v. Wade, has no support in the Constitution. Like Roe, Obergefell was “egregiously wrong from the start.”
“The RFMA cannot define marriage for the states,” the legal ministry notes, pointing out that the RFMA has just repealed “the second part” of the Clinton-era Defense of Marriage Act (DOMA), which said that states were not required to recognize the same-sex marriages of other states.
The first part of DOMA, which defined marriage for all the states as the union between one man and one woman, had already been struck down, Liberty Counsel explains, in the Supreme Court’s 2013 decision in United States v. Windsor.
Under the RFMA, states are required to recognize gay marriages in other states.
“In other words, the states, not the federal government, have the right to regulate marriage,” Liberty Counsel emphasizes, elaborating further on how passage of the RFMA creates an avenue to overturning Obergefell:
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.
Although the House passed the “Respect for Marriage Act," it may prove to be a strategic blunder by advocates of same-sex marriage. RFMA makes it easier to argue for the overturn of 2015's Obergefell decision. Find out why our Kim Davis case factors in:https://t.co/irsfhHNHKy
— Liberty Counsel (@libertycounsel) December 8, 2022
Liberty Counsel hopes its case involving Rowan County, Kentucky Clerk Kim Davis, who refused, in 2015, to provide a marriage license to a same-sex couple on the grounds it violated her faith beliefs, will 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,” the Christian legal group says. “Justices Thomas and Alito have already invited future challenges to the 2015 Obergefell marriage case since the decision was never constitutional.”
“The drafters and supporters of RFMA did not intend for the consequence that is forthcoming,” Liberty Counsel forewarns. “But it will come. Like Roe, the days of Obergefell are numbered.”
Mat Staver, Liberty Counsel chairman, asserted that, despite the disappointment of Congress’s approval of the RFMA, “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,” he predicted. “Lawmakers have unwittingly created the perfect scenario to overturn the unconstitutional Obergefell decision.”
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Susan Berry, PhD, is national education editor at The Star News Network. Email tips to [email protected].
Photo “Joe Biden” by Joe Biden.
