Bilerico Report

If marriage equality was overturned, would states be able to enforce old bans?

FILE - In this Jan. 28, 2014 file photo, National Organization for Marriage President Brian Brown speaks in Salt Lake City. AP Photo/Rick Bowmer, File

When you’re a one-issue outfit and you have suffered the definitive defeat for your cause, you may want to reconsider your direction. But not if you’re Brian Brown, head of the National Organization for Marriage.

In a fundraising letter that sets new standards for denial, Brown insists that the marriage equality will be repealed as the law of the land any day now.

Brown’s argument hinges on the fact that many states still have marriage bans on their books. These laws “will come back to life when the Obergefell case is eventually overturned, which it clearly should be and we believe will be, perhaps sooner than people imagine,” Brown says.

It is true that there are 13 states with marriage bans still on the books.  States often don’t bother repealing laws that have been rendered moot by a court ruling. For example, more than a dozen states still have sodomy laws on the books, fifteen years after the Supreme Court ruled such laws unconstitutional.

That doesn’t mean the laws are hibernating, as Brown implies. It means they are dead, but state legislatures can’t be bothered burying them.

That’s not the only load of wishful thinking in Brown’s fundraising pitch. He’s pushing a line that opponents of marriage equality are “one vote shy of having a pro-marriage majority in the U.S. Supreme Court.” Once that justice is appointed, marriage bans will be back in place in no time.

Except. There are two main problems with the argument.

For one, someone would have to bring a suit that would lead the Supreme Court to consider the original decision. That will take years, if one can even get off the ground. Lower courts are unlikely to accept a case arguing the bans on the books are still valid because the Supreme Court has already said otherwise.

If a case somehow made its way to the Court, four justices would have to agree to a hearing. Given the ever growing support for marriage equality and the fallout from a repeal, it’s hard to imagine that the justices would be interested in revisiting the case.

It’s far more likely that Brown’s dream justice would prefer to focus on picking away at the existing law with religious liberty exemptions.

Of course, Brown insists that the original ruling was “illegitimate” and “anti-constitutional,” although it’s hard to see how a Supreme Court ruling on the Constitution can by definition be unconstitional.

The fact of the matter is that NOM’s reason for existence is a lost cause. The organization has been flailing financially for some time. According to IRS filings, NOM saw its revenue drop by 41 percent to $1.5 million between 2015 and 2016, the last year filings are available, and salaries dropped by more than half.

As a sign of just how pitiful its finances are, Brown’s fundraising letter promises a matching donation of $50,000 from an anonymous donor. That’s roughly the size of a single matching grant for a local NPR fundraising drive.

Of course, Brown can’t acknowledge reality, because if he did, NOM would have to close up shop and he’d be out of a job. Still, at the rate the organization is going, that seems a lot more likely than a return to the days when marriage equality is illegal.

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