By L.A. Williams
Christian Action League
December 16, 2022
“It ain’t over till the fat lady sings!” The colloquialism often used in reference to a sporting event may equally apply to the battle over marriage in America. Legal experts this week say the so-called Respect for Marriage Act, approved by Congress and signed into law Tuesday by President Biden, could actually help open the door for the Supreme Court to overturn its 2015 ruling that legalized gay marriage in the first place.
“The passage of the RFMA and its resulting threat to religious liberty truly feels like a dark cloud over our nation, but the legal landscape that it has created may just be a silver lining,” said the Rev. Mark Creech, executive director of the Christian Action League. “We know that marriage is ordained by God as one man and one woman no matter what courts or legislatures decree. But our prayer is that this plays out as our friends at Liberty Counsel are predicting so that marriage once again is governed by the states.”
That prediction, explained in a statement issued by Liberty Counsel on Tuesday, is that the Supreme Court, which allowed gay marriage across the United States by passing Obergefell v. Hodges, will reverse that 5-4 decision freeing states to return to their pre-2015 laws. As a reminder, North Carolina voters overwhelmingly approved (61 percent to 39 percent) a constitutional amendment reaffirming marriage as between one man and one woman in 2012.
“We oppose the RFMA but believe that it takes away an argument from the other side for a future SCOTUS decision revisiting Obergefell,” explained Richard Mast, a Liberty Counsel attorney, in an email to the Rev. Creech.
“The argument is that Obergefell cannot be revisited, because of the effect overturning Obergefell would have on all of the homosexual couples who ‘relied upon’ Obergefell to get their ‘marriage’ licenses. RFMA permits our side to argue that Obergefell was poorly reasoned and inconsistent with previous precedent, and may safely be reversed, because RFMA protects those couples.”
The Liberty Counsel lays out several reasons that it expects the Obergefell decision will be reversed. Beyond the fact that it was unconstitutional to begin with, three of the five justices who voted for it (Kennedy, Breyer, and Ginsburg) are no longer on the High Court.
“Five lawyers have … enacted their own vision of marriage as a matter of constitutional law,” wrote Chief Justice John Roberts in the dissenting opinion for the Obergefell case, adding. “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.”
That precedent includes the 2013 United States v. Windsor case, which struck down part of the Defense of Marriage Act, based on the fact that the states, not the federal government, have the right to regulate marriage.
“The merits argument of why Obergefell should be overturned is easy,” the Liberty Counsel argues. “The policy argument that doing so would cause a huge disruption has always been the most difficult to overcome – until now.”
The idea is that prior to the passage of the RFMA, if the Supreme Court reversed Obergefell, same-sex couples who got marriage licenses during the time when same-sex marriage was the law of the land would be left in limbo. But now, with the RFMA in place, they would be “grandfathered” in and the licenses would 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,” the statement says.
“The advocates of RFMA may celebrate today, but that celebration will not last,” added Mat Staver, Liberty Counsel founder and chairman. “Lawmakers have unwittingly created the perfect scenario to overturn the unconstitutional Obergefell decision.”
If that happens, it could pull the legal rug out from under RFMA.
Mast explains: “If ‘Obergefell II’ reverses and jettisons Obergefell, finding no constitutional right to homosexual marriage in the U.S. Constitution and returns the issue to the states, RFMA may later be challenged on the same grounds upon which DOMA was struck down, to complete the victory.”
The Rev. Creech urged Bible-believing Christians to be encouraged by the possibility of a legal win, but to remember that no matter the law of the land, God’s law will ultimately win out over any court ruling.