Although the House passed the “Respect for Marriage Act” with a 258-169 vote that included 39 House Republicans, this action is a strategic blunder by advocates of same-sex marriage. 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.
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. Justice Thomas and Alito also dissented. Justices Gorsuch, Kavanaugh, Barrett, and Jackson have since joined the High Court.
Until the passage of the “Respect for Marriage Act,” the biggest hurdle to overturning Obergefell was not on the law but on policy. Obergefell, like Roe v. Wade, has no support in the Constitution. Like Roe, Obergefell was “egregiously wrong from the start.” As Chief Justice Roberts wrote, “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.”
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 despite that fact it was wrongly decided. Until the decision is overturned, those who obtained licenses will be “grandfathered” in and the licenses will remain valid. However, like abortion, the Supreme Court will return the matter of marriage to the states to decide a state-by-state law going forward. States will then be free to return to their laws prior to 2015 that marriage is the union of one man and one woman.
The case involving Kim Davis may be a vehicle to 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 Clarence Thomas (joined by Justice Samuel Alito) wrote that the Supreme Court’s majority decision in Obergefell v. Hodges caused a collision with religious liberty, and the Court must fix it. Four justices, including Chief Justice John Roberts, strongly dissented in Obergefell. Justice Alito predicted the opinion would cause significant problems for religious freedom.
Justice Thomas wrote, “In Obergefell v. Hodges, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.”
“Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws. It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch,” wrote Thomas.
Justice Thomas noted that “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 also wrote, “This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them.” The petition was only qualified immunity, namely whether Davis should personally pay for the attorney’s fees of the plaintiffs’ counsel. Justice Thomas continued, “Nevertheless, this petition provides a stark reminder of the consequence of Obergefell.” He ended by saying “the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
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. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
“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.” Ante, at 11, 23. 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?”
Liberty Counsel Founder and Chairman Mat Staver said, “Thursday’s vote on the so-called ‘Respect for Marriage Act’ has paved the way for the Supreme Court to overturn the 2015 5-4 opinion in Obergefell v. Hodge and thus return marriage back to the states. These lawmakers have unwittingly created the perfect scenario to fix the mess the Court originally created.”
