A conservative organization is making the case that Congress' passage of the Respect for Marriage Act (RFMA) "can actually create the perfect scenario" to overturn gay marriage rights.
Liberty Counsel, a self-described Christian ministry that "embraces a worldview that is historically biblical," said Monday on its website that President Joe Biden signing the bill could lead a more conservative U.S. Supreme Court to overturn the 5-4 Obergefell v. Hodges decision in 2015 that ruled the 14th Amendment requires all states to license marriages between same-sex couples and to recognize all marriages that were lawfully performed out of state.
Liberty Counsel, a nonprofit that operates a pro bono litigation program, said that without liberal Justices Ruth Bader Ginsburg and Stephen Breyer on the Court, as well as the additions of Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, there's an opportunity for the highest court to reverse the ruling.
It also mentioned how the RFMA cannot define marriage for the states, referencing how in 2013 the Supreme Court struck down a part of the Defense of Marriage Act in United States v. Windsor that defined marriage for all states as the union of one man and one woman. In that ruling, the Supreme Court said that domestic relations and the definition of marriage is "an area that has long been regarded as a virtually exclusive province of the States."
"Until now, the biggest obstacle to overturning Obergefell was based on those who relied on the flawed decision to obtain a marriage license," the Liberty Counsel said. "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."
Mathew Staver, founder and chair of Liberty Counsel, wrote the piece on Monday. He told Newsweek that it's not wishful thinking, saying that since 2015 the Counsel has "been considering a path to overturn the opinion because it does not rest on a constitutional foundation and three of the justices who were part of the majority are no longer on the Court."
"There are many other cases involving religious liberty or other conflicts with Obergefell that could challenge the opinion," Staver said. "The fact is that Obergefell is on thin ice. The Respect for Marriage Act has paved the way to overturn the case because it removes the biggest argument for upholding the decision—namely that people obtained marriage licenses in reliance on Obergefell.
"Since the Respect for Marriage Act will protect existing licenses, the reliance argument has been removed off the table. Now we can go directly after the case on the merits that it has no basis in constitutional law."
Twelve Senate Republicans voted in favor of the RFMA.
Many lawmakers who voted against it cited concerns about religious liberties, including Senator Mike Lee of Utah, who proposed an amendment that was struck down prior to the final vote but that he said "would have clearly achieved religious liberty protection."
Lee described his amendment as barring the federal government from "retaliating against any person or group for adhering to sincerely held religious beliefs and moral convictions about marriage."
An Associated Press fact check determined that the RFMA would not allow churches or other organizations to be sued for their marriage stances, nor would it lead to churches being denied their tax-exempt status if they don't support same-sex marriages.
In the House, 39 Republicans voted in favor of the legislation—down from 47 when it was introduced in July. The bill ultimately passed Thursday by a vote of 258-169-1.
Steve Sanders, a professor at the Maurer School of Law at the University of Indiana, told Newsweek that Obergefell was initially significant because of its right for same-sex couples to get married in every state. The RFMA protects the legal status of existing marriages and would prevent one state from refusing to recognize another state's marriage, he said.
"But if Obergefell were overruled, couples in many states might find themselves unable to get married in the first place, at least without the inconvenience of going out of state," he said. "Congress has no power over the creation of new marriages. Thus, the RFMA, while clearly a landmark legislative achievement, is no substitute for a constitutional right to marry. The justices understand that the core holding of Obergefell cannot be replicated by federal legislation."
However, he believes the "backlash" in the aftermath of the Dobbs decision that reversed Roe v. Wade is a sign that the Supreme Court will not overturn Obergefell.
"More fundamentally, the moral, political and cultural calculus of same-sex marriage is completely different from that of abortion," Sanders added. "In Dobbs, all the conservative justices in the majority except Thomas disavowed the idea that the two were connected. There is absolutely no evidence the Court has any taste for reopening marriage equality.
"As for Liberty Counsel, they're simply kidding themselves as they go on fighting a war they lost long ago."
Brian Burch, president of CatholicVote, wrote in Newsweek that RFMA is the latest example of leftists "attempting to force Americans to choose between the practice of their faith and participation in public life."
"Religious Americans should be skeptical of the prevailing narratives on this issue, especially when there's every indication that the Respect for Marriage Act is yet another attempt to harass, intimidate, and silence people of faith," Burch wrote. "The rejection of Sen. Lee's amendment in the Senate ought to serve as further confirmation of this truth.
Sole Strategies fundraising director Terrell Finner, who works to help get grassroots political candidates elected, is gay and told Newsweek that passing the RFMA affords the LGBTQ+ community more freedom and liberties.
"Members of the [gay] community and our allies are all breathing a sigh of relief because we all thought by and large there was a very real threat....Our freedoms are not guaranteed. They are something always having to be worked towards," Finner said.
When asked why it feels different than in it did in 2015, or even before last week, Finner said it's because he and others have seen countless cases over the years, at all judicial levels, to strip away rights.
"It being the law in the land is very different when it's challenged in court versus past court decisions," he said. "I think it being codified, it has a very different kind of standing and is much more solidified and protected when it's challenged in court."
Update 12/14/22, 9:40 a.m. ET: This story was updated with comment from Mathew Staver.
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