While we are disappointed that the “Respect for Marriage Act” (RFMA) passed, we are prayerfully optimistic that this bill will be the undoing of the Supreme Court’s 2015 same-sex marriage opinion in Obergefell v. Hodges. Do not be discouraged.
 
Hear from our chairman, Mat Staver, below, as he unpacks the legal strategy moving forward to defeat this attack on God’s design for marriage. —Your Faith & Liberty team

Lawmakers who pushed RFMA have unwittingly created the perfect scenario to fix the mess the Supreme Court originally created.

Obergefell is hanging by a thread ...

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

The dissent of Chief Justice Roberts is indisputable: “The majority’s decision is an act of will, not legal judgment. The right it announces [same-sex marriage] has no basis in the Constitution or this Court’s precedent.”

Obergefell, like Roe v. Wade, has no constitutional foundation.

What RFMA did and did not do ...

RFMA cannot define marriage for the states. In 2013, the Supreme Court in U.S. 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.”

The second part of DOMA said one state did not have to recognize the same-sex marriages of another state. This is the provision that RFMA repealed. It now requires one state to recognize the same-sex marriages of another state.

RFMA has doomed Obergefell ...

Until now, the biggest obstacle to overturning Obergefell was based on those who relied on the 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 have, until now, resulted in chaos. The merits argument of why Obergefell should be overturned is easy. The policy argument that doing so would cause 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 return marriage to the states, which will then be free to return to their laws prior to 2015 with marriage as the union of one man and one woman.

The case involving former Kentucky Clerk 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 Obergefell 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 supporters of RFMA did not intend to create the consequence. But it will come. Like Roe, the days of Obergefell are numbered.

Be encouraged.

Mat Staver
Chairman
Faith & Liberty

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