Rekindling the marriage debate

MARY REICHARD, HOST: Coming up next on The World and Everything in It: challenging supreme court precedent.

A decade after the U.S. Supreme Court redefined marriage nationwide to include same-sex couples, some lawmakers are pushing to overturn that decision.

MYRNA BROWN, HOST: What would it take to change it?

WORLD’s Anna Johansen Brown has the story.

ANNA JOHANSEN BROWN: On February 25th, Michigan State Representative Joshua Schriver approached a press conference microphone. He took a deep breath and said he wouldn’t be taking any questions. Ignoring the protestors chanting outside, he announced a new House resolution.

SCHRIVER: I hereby call on the US Supreme Court to overturn Obergefell v. Hodges.

Obergefell is the Supreme Court’s 2015 decision which granted a constitutional right to same-sex marriage. Schriver’s resolution claims that right undermines religious liberty and redefines marriage.

SCHRIVER: Michigan Christians follow Christ’s definition of marriage as a covenant between a man and a woman, an institution established to glorify God and produce children.

So far, legislators in six other states have introduced resolutions condemning same-sex marriage. At least two of the resolutions have been rejected.

All of the statements were drafted by MassResistance. That’s a conservative advocacy group committed to supporting traditional understandings of marriage and sexuality.

SCHAPER: By instituting or initiating this resolution effort, we are forcing the conversation back into the public square.

Arthur Schaper is MassResistance’s field director. Longterm, he hopes the resolutions will move beyond simply initiating conversations about same-sex marriage.

SCHAPER: Right now, the legislators that I've been working with, they not only want this resolution, they want to start advancing freedom of conscience provisions so that judges don't have to officiate same-sex weddings or that clerks can refuse to issue the licenses.

These resolutions could help lay the groundwork for state-level protections for religious freedom. But those statements alone can’t threaten Obergefell, that would require a live Supreme Court case.

Daniel Schmid is an attorney with Liberty Counsel, and he hopes to do just that by bringing Kim Davis’ case before the Supreme Court to challenge Obergefell.

Davis is a former Kentucky clerk. In 2015, she refused to issue marriage licenses to same-sex couples on the basis of her religious convictions. That decision came with consequences.

SCHMID: First American I'm aware of in the history of the Republic to be jailed for the exercise of their religious beliefs. That’s rather astounding, but it's what happened to her.

The punishment might be unusual, but similar religious freedom lawsuits have become all too common. From cake bakers to website designers:

SCHMID: Almost every industry that deals with weddings had religious individuals who didn’t want to participate or lend their religious expression to the ceremony, and every single one of them that I’m aware of was sued.

In 2020, the Supreme Court declined to hear an appeal of Davis’ case. Conservative Justice Clarence Thomas agreed with the high court’s denial, but he noted that constitutional protection for same-sex marriage usually comes at the expense of religious freedom.

When Roe v. Wade fell two years later, Justice Thomas suggested that the court should also reexamine cases like Obergefell. Daniel Schmid agrees, arguing that same-sex marriage should return to the states just like abortion.

SCHMID: Now it took 50 years to overturn Roe. I don't think it'll take 50 years to overturn Obergefell, but who knows?

Some legal experts doubt that the Davis case can bring down Obergefell. The number of cases that get to the Supreme Court is already pretty small, and Davis’s case didn’t make it.

ESBECK: The US Supreme Court gets about four or 5000 requests every year for them to take appeals, and they grant only about 65, or 70…

Carl Esbeck is a law professor at the University of Missouri.

ESBECK: So it's very, very difficult to get a live case before the Supreme Court.

He says that even if the court reversed Obergefell, federal law also protects same-sex marriage. Months after the Dobbs decision, former President Joe Biden signed the Respect for Marriage Act.

BIDEN: And now, the law requires that interracial marriage and same-sex marriage must be recognized as legal in every state in the nation.

Thanks to that law, it would be difficult to send same-sex marriage back to the states.

ESBECK: So somebody wanting to go back to pre-Obergefell would have to not only get the court to reverse itself on Obergefell, but they would have to get Congress to repeal the Respect for Marriage Act. So, sort of a double heavy lift and politically improbable.

Even so, state-level resolutions show that there’s growing pushback to same-sex marriage.

And that likely has to do with concerns about transgenderism.

Jennifer Roback Morse founded the Ruth Institute. It’s a pro-family nonprofit that publishes research on the consequences of the sexual revolution. She says that defining same-sex marriage as a constitutional right paved the way for the transgender movement. She calls it “degendering” marriage.

MORSE: Gay marriage says that male and female don’t matter for marriage and for childbearing. Well, hello, having children is the most gendered thing that we do you know, if you're going to say that doesn't matter, then it doesn't matter on the sporting field, it doesn't matter in the bathroom, it doesn't matter anywhere.

But Morse doesn’t think opposition against same-sex marriage will kick into high gear anytime soon. According to a recent Gallup poll, most people support legally recognized same-sex marriage, even more than they did a decade ago.

And Morse says they also don’t have a right understanding of marriage and family to begin with.

MORSE: So when you say gay marriage is gonna deprive children of one of their parents, they're like, so what? They've already decided so what? Because mom's on her third husband, right? You see the problem?

The problem, according to Morse, is that mainstream culture has redefined marriage as little more than a “government registry of friendship.” And she worries that there isn't much left to safeguard.

For WORLD, I’m Anna Johansen Brown.

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