Conservative Christians around the country have been trying to figure out ways to go against the Supreme Court ruling in Obergefell v. Hodges. We had Kim Davis doing her thing three years ago. We had Judge Roy Moore suspended for trying to stop same-sex marriage license from being given out in Alabama. There were multiple attempts to subvert it until very recently. Today, it appears to be just a normal part of life. Everyone has moved on.
Did America have a change of heart? In some ways, yes. But there’s also a sense of hopelessness over a situation most believe cannot be changed any time soon. Most conservatives and Christians are doing what we can to stay afloat; fighting past battles is very low on the priority list. But there are still occasional attempts similar to Davis’s and Moore’s that pop up from time to time. None of these can work. It’s not possible for them to work based upon the Constitution. There’s nothing that the citizens, Senators, Congressmen, or even a President can do to directly oppose or reverse the decision. There’s only one thing that can be done. The original ruling must be overturned and that’s no easy feat.
To do this would require one of two things: a 3/4th majority of state legislatures amending the Constitution or a powerful ruling by the Supreme Court itself to overturn its previous ruling. The first option is all but impossible on this particular issue given the sentiment of citizens in the nation itself. The second is very difficult given the doctrine of stare decisis, but it’s conceivable under the right circumstances.
First and foremost, the balance of power in the Supreme Court must be changed. It’s easy to argue that appointing Supreme Court Justices is by far, hands down the most important task of the President. It will have bigger and longer-lasting effects on the future of this country than any other action the President is capable of taking. So far, we have one strong originalist and one ideologically-yet-to-be-determined, so it seems things are heading in the right direction. But Chief Justice John Roberts has been acting as a counterbalance so far, meaning President Trump will need to get at least one more originalist on the bench to replace one of the progressive justices in order to have a remote chance of reversing some of the damage done from the bench over the last few decades.
The next thing that would need to happen is that a case must be reviewed by the freshly-conservative Supreme Court that is directly related to the ruling of Obergefell v. Hodges. This, too, is not an easy task and will require the type of planning nobody’s talking about doing right now. As I said before, the issue has been pushed aside. But there’s still chance it could happen. Slim, but present.
In essence, this is a one-time shot. It has to be perfect to have any chance of working. The timing would have to coincide with the next appointment in the Supreme Court. The proper path of venues would need to be chosen ahead of time so that it would have the best chance of reaching the Supreme Court in the appropriate session. Those involved with the case would need to be compelling.
Of course, this raises the question of whether or not it even should be considered. Has the battle been lost permanently? Is it too early to try to reverse a decision that hasn’t even reached a decade since it was made? At this point, it doesn’t seem to be as important to most conservatives as it was just a couple of years ago.
But if one of our goals is to be reestablishing the power of the people and the states while reducing the power of DC, this would be a great issue upon which to make that happen. The proper path here would be to attack the Constitutionality of the Supreme Court’s ability to make the ruling in the first place. This should be a state issue; even proponents of gay marriage who know the law and understand the Constitution are very well aware of this. It’s the Achilles Heel of the ruling. For this reason, it’s no surprise that making this an issue for individual states to decide has been conservative’s argument since before the Supreme Court ruling was even made.
One thing that we must remember regarding whether or not this should even be tried. The Bible is unambiguous. Marriage is between a man and a woman. As I noted before, the financial ramifications of unions should be wide open. If a gay couple wants to get tax breaks, share benefits, or any of the other secular benefits associated with legal marriage, so be it. But the covenant of marriage has always been between a man and a woman millennia before the United States was even a nation. That portion of Biblical worldview means Christians cannot give up on this issue any more than we shouldn’t give up on overturning Roe v. Wade.
Does that mean same-sex marriages should be outlawed? That’s up to the states, and I would assume most states would not outlaw it. But the mandate for adherence by churches, bakers, and anyone else to be forced to participate in same sex marriages must be reversed.
Everything else that is being done in protest of gay marriage is just that: a protest. The path to fight it with a chance of success is extremely narrow. Meanwhile, the battle for hearts and minds may have been lost long ago.
Is the nation ready to revive the American Conservative Movement?