Could attempting to codify case law that was decided many years ago open up the legal question again?

Question

As of right now, gay marriage is legal based off of the case law resulting from the decisions of United States v. Windsor and Obergefell v. Hodges. These cases struck down Sections 2 and 3, respectively, of the Defense of Marriage Act (Section 1 was merely the short title). DOMA itself though was never repealed. Now, more than five years later, if Congress were to pass a law officially repealing DOMA, could they be sued by right-wing groups attempting to bring the legal question back?

We've already seen the tactics of completely ignoring Supreme Court precedent being used by those on the right with the legal crisis surrounding the Texas abortion ban. Would right-wing groups have any sort of luck suing a repeal of DOMA, or would a lower court make quick work of their complaint and rule against them, citing the above cases?

I guess, in short: if Congress repeals DOMA (in line with case law), could right-wing groups sue over that with any success?

Edit: I see my original question was not worded well, and it actually was not what I was attempting to ask. So, to rephrase: if Congress passes a law that explicitly allows gay marriage, could there be a lawsuit with any amount of success over that law?

Answer 1

Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what the wording of a law can be. Only Congress has the power to determine what laws they pass. The courts do, of course, have the power to interpret and even strike down a law that they deem to be unconstitutional. This is the essence of constitutional separation of powers.

Answer 2

The US Constitution does not require that any particular law be on the books, so repealing a law (like the DOMA) can never be unconstitutional as a matter of substance. I suppose there could be an argument that a rep[al did not follow procedure set out in the constitution, for example that no quorum was present for the repeal vote. I don't know of any case where such a claim has been brought to a court, and I am not sure that such a claim would even be justicable.

Even when Congress passes a blatantly unconstitutional law, there is no way to sue Congress, although the courts can hold the law to be unconstitutional and therefore not a valid law.

A state could pass a law forbidding same-sex marriage, contrary to the ruling in Obergefell v. Hodges, in an effort to get that ruling reversed or ignored. But that would not be "suing Congress", and it would have nothing legally to do with a formal repeal of the DoMA.

Note: Congress rarely bothers to formally repeal laws that have been held unconstitutional. If the entire law was struck down, a repeal would have no legal effect.

Revised question

if Congress passes a law that explicitly allows gay marriage, could there be a lawsuit with any amount of success over that law?

Yes there could be a suit to overturn such a law. The Supreme Court could use such a suit to reverse Obergefell, if a majority of Justices thought that was the proper thing to do.

Even without a new law, there could be a suit. For example, a state or county official Bob claims that requiring him to issue a license for a same sex marriage violates his freedom of religion. Usually such a suit would be dismissed early as governed by existing precedent. But if there was sentiment to overturn that precedent, the case could be appealed to the Supreme Court which could overturn the prior decision. Very much this route was fallowed in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) . Whether the Court is likely to overturn Obergefell is a very different question.

Answer 3

if Congress passes a law that explicitly allows gay marriage, could there be a lawsuit with any amount of success over that law?

Typically, a statute that codifies case law cannot be successfully attacked as unconstitutional for reasons different than the reasons that a court could overrule its past precedents.

Similarly, past case law rules that have been abandoned can't always be salvaged by codifying them.

For example, in Colorado, courts replaced an old common law rule related to child custody on the grounds that it was unconstitutionally gender biased. Even if Colorado's legislature re-enacted the rule as a statute, it would probably be invalidated on constitutional grounds.

This doesn't mean that codification never has an effect. It is much easier to press a legal argument based upon the very specific and exact language of a particular statute, than it is to do so in the face of a line of precedent setting cases that establish a larger doctrine in which the underlying motive for the past precedents, in addition to their exact language, is relevant in interpreting them. So, it is easier to press for exceptions to a codified law.

Answer 4

The answer likely depends on the actual wording of the law.

If it says nothing more than that marriage benefits cannot be denied on the basis of sexual orientation, then there's not much to argue about as the law hasn't really changed. The constitution already imposes the same rule, so the statutory enactment has no real effect.

But if it goes beyond that to say that such marriages entitle the spouses to some particular benefit, or impose a penalty on anyone attempting to interfere with the right to a same-sex marriage, those laws would remain open to debate and potential challenges.