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.”
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.