With backing of Christian conservatives, legislators trying to repeal gay marriage
Nine states have bills to reverse Supreme Court or offer covenant marriage
Legislatures in at least five states have recently considered or are considering proposals aimed at overturning Obergefell v. Hodges, the 2015 U.S. Supreme Court decision that legalized same-sex marriage nationwide, but proposals appear to be making little headway.
The same can be said of efforts in four states to expand the availability of “covenant marriage,” a legal alternative to standard marriage, one that is patterned after traditional conservative Christian understandings of Biblical marriage.
The anti-gay-marriage effort is using a novel legal strategy: Bills submitted in the five states legislatures simply ask the Supreme Court to overturn Obergefell on grounds that the decision was in error, partly because it upended more than two centuries of constitutional interpretation and two millennia of tradition.
How this approach is legally flawed
The legal problem with this approach is that the Supreme Court isn’t set up to overturn earlier decisions simply because it no longer agrees with an earlier ruling. The normal way, in fact historically the only way, for the Supreme Court to overturn an earlier ruling would be to accept an appeal from a lower court that raises the issue. This is how the high court ended up reversing Roe v. Wade in 2022 with its Dobbs v. Jackson Women's Health Organization ruling. Mississippi passed a law that ran counter to the Roe decision, and opponents of the law sued the state and won in lower courts. The state appealed to the Supreme Court, which then agreed with the state’s position, overturning Roe.
The reality of the situation, then, is that the proposed legislation has almost no legal significance, at least until a state or a local government refuses to issue a marriage license to a same-sex couple and the resulting dispute is appealed to the high court. In such a case, legislative resolutions could be cited in legal briefs but would be binding on no one.
Also, even if the high court were to overturn Obergefell, same-sex marriages would continue to be recognized nationally unless Congress were to repeal the 2022 Respect for Marriage Act. That law requires all states to recognize same-sex marriages solemnized in other states.
According to the Washington Post1, the strategy is the brainchild of MassResistance, an ultraconservative, self-described “pro-family activist organization” fighting “assaults on the traditional family, school children, and the moral foundation of society.” Formerly known as the Parents’ Rights Coalition, the Massachusetts-based group claims to have supporters in all 50 states and numerous foreign countries.
Although the group doesn’t explicitly describe itself as Christian, the resources on its website include numerous documents advocating or presupposing a Christian perspective, including the book Redeeming the Rainbow: A Christian Response to the “Gay” Agenda2 by Scott Lively. The book claims, among other things, that the LGBTQ movement is an attack on churches, and it urges Christians to use missionary zeal in promoting a “Christian-stewarded secular society.”
Legislation in five states
Although the MassResistance-backed resolutions in the five states aren’t identical, they make similar legal and social arguments. Among them is that Obergefell undermines the idea that human dignity is innate rather than coming from government. They also point out that the United States has consistently recognized since its creation that a marriage consists of one man and one woman, making Obergefell a legal overreach.
Here’s how the anti-gay-marriage effort is faring in five states:
🟪 Idaho: The House passed its resolution in January on a 46-24 vote with all Democrats and 15 Republicans in opposition. The resolution, House Joint Memorial 1, was the first piece of legislation introduced in the Legislature. The Senate has yet to vote on the measure, which does not need the governor’s signature to be submitted to the Supreme Court.
🟪 Michigan: Rep. Josh Schriver, one of the most outspoken and most conservative members of the Legislature, introduced House Resolution 20 in February, calling Obergefell a “perverted Supreme Court ruling.” The bill has been referred to the House Government Operations Committee.
🟪 Montana: The Montana version of the proposal is dead after a Senate committee was deadlocked 4-4 on advancing the bill to the full Senate. The Senate deadline for considering the resolution has since passed.
🟪 North Dakota: House Concurrent Resolution 3013 has passed the House on a mostly party-line vote with all Democrats in opposition. The vote was 52-40 with one abstention. The Senate has yet to act on the bill.
🟪 South Dakota: House Concurrent Resolution 6012 appears to be dead after it was deferred by the House Judiciary Committee on a 9-4 vote. Among the arguments made in HCR 6012 is that Justices Ruth Bader Ginsburg and Elena Kagan should have recused themselves from Obergefell because they had previously officiated at same-sex weddings.
A new push for ‘covenant marriage’
Covenant marriages — which provide the same legal status as other marriages but have stricter requirements for initiating and for dissolving — are already available in three states (Arizona, Arkansas and Louisiana). Historically, covenant marriages have been promoted primarily by evangelical Christians who see them as a way of strengthening the marriage bond. The covenant marriage proposals, which would not eliminate current marriage law but provide an alternative, abandon the no-fault dissolution or divorce approach that has become the norm. Couples entering into a covenant marriage typically would have to show the existence of factors such as adultery or abandonment before a dissolution or divorce could get quick approval.
Although details differ from state to state, obtaining a license for a covenant marriage generally requires the couple to obtain premarital counseling from either a licensed counselor or a religious authority. The couples frequently are required to commit to counseling before they can dissolve the marriage, and a dissolution or divorce typically cannot be finalized until after a longer waiting period than is required for other marriages.
Published data suggest that covenant marriages are fairly rare, with not more than 5 percent choosing that option when available. The best-known proponent of covenant marriage is U.S. House Speaker Mike Johnson; he and he wife, Kelly Lary, entered into a covenant marriage when the wed in Louisiana in 1999.
Here’s a quick look at covenant marriage bills for current legislative sessions:
🟪 Missouri: House Bill 562 would indirectly challenge Obergefell by making covenant marriage available only to a “prospective male spouse” and a “prospective female spouse.” No action has been taken on the bill.
🟪 Oklahoma: Senate Bill 228, filed by a Baptist pastor serving in the Senate, was rejected at the committee level and thus is dead. An affidavit that would have been required for entering into covenant marriage required the couple to “solemnly declare that marriage is a lifelong covenant made before God.” The bill also would have provided by a $2,500 tax credit as an encouragement to enter into covenant marriage.
🟪 Tennessee: Senate Bill 737 is another indirect challenge to Obergefell, providing that a covenant marriage is a “marriage entered into by one male and one female.” The proposal is being considered by the Senate Judiciary Committee.
🟪 Texas: House Bill 931 defines a covenant marriage as “a covenant between two people who agree to live together as spouses for so long as they both may live.” Counseling would be required before such a marriage could be dissolved. No action has been taken on the bill.
The book consistently uses the word “gay” in quotation marks as representing its position that gays can’t be truly happy.