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 DOMA itself though was never repealed.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?

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    Under what theory to you think the repeal, by Congress, of any law previously passed by Congress be challenged in court? Laws enacted can be challenged as unconstitutional but how can a law removing law be unconstitutional? Sep 18, 2021 at 4:20
  • This might be a bit of a stretch, but is Congress required to pass laws in general? (maybe?) Would it be a dereliction for Congress to just sit on their hands, and is there any way to actually compel Congress to take some action? If so, is Congress required to pass laws on specific issues - is there any requirement that we must have a law which addresses some specific issue? (probably not?)
    – brhans
    Sep 18, 2021 at 13:26
  • sue who, exactly? Sep 18, 2021 at 14:11
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    @brhans No, Congress is not required to pass any laws in general, and surely not any particular law. The only lawful remedy if Congress does not pass a law some think it should is to elect different people to Congress at the next election(s). Sep 18, 2021 at 15:05
  • @GeorgeWhite I admit my original question was flawed, as a repeal is different than en enactment. Let's say Congress enacted a law that explicitly allowed gay marriage. Could there be a lawsuit over that? Sep 18, 2021 at 18:19

4 Answers 4


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.

  • I guess the spirit of the question was whether or not the constitutionality of Congess' subsequent action (repeal in OP's case, but we could consider also a law passed on similar terms to the old) could be challenged as a way to have the same point reconsidered by the courts as in the earlier judgement.
    – JBentley
    Sep 18, 2021 at 5:16
  • > Congress cannot be sued for enacting a law. Period. How them are unconstitutional laws dealt with? How was DOMA stuck down in the first place? Perhaps it wasn't Congress itself that was sued, but it was being argued that the law (DOMA) was unconstitutional. I guess a better phrasal of my question is: if Congress passes a law that explicitly allows gay marriage, could that law be challenged in court with any form of success? Sep 18, 2021 at 18:21
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    You don't sue Congress, you sue whatever person attempts to use the law against you, e.g. some branch of government that executed laws, or the person that sues you under some federal statute (such as copyright law). In the case of Obergefell, Hodges was the guy who "stood in for" Kasich, who was the governor, the governor of Ohio. You're moving towards a very different question (I don't know what it actually is), but it always reduces to the matter of enforcing a law, not passing one.
    – user6726
    Sep 18, 2021 at 18:28
  • Very interesting perspective. The more I think about it, the more I see your point about enforcing vs passing. Sep 18, 2021 at 20:34

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.

  • > 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. As an supplementary question then: if Congress decided to replace DOMA with a law explicitly stating that gay people could marry, could right-wing groups sue over the passing of such a law, trying to being the constitutionality question back into the courts? Sep 18, 2021 at 18:17
  • Just that the state tryting to do so falls victim to the supremacy clause and 14th amendment.
    – Trish
    Sep 18, 2021 at 18:46
  • @Trish, the US Supreme Court can and does at times overrule itself, but only when a new "case or controversy" is presented to the courts. Test cases are more common than test laws, but both have been used as occasions of reversals. Consider West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) a case where the overturn was particularly swift and the second case is considered a landmark. Sep 18, 2021 at 18:51

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.


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.

  • Could a group just ignore precedent and file a complaint anyway arguing that it's unconstitutional, hoping to get it in front of a sympathetic judge? If so, how likely would that be to succeed? Sep 18, 2021 at 20:11
  • They might get it in front of a sympathetic judge, but the question is whether that judge's decision will be reversed. There's always the chance the Supreme Court will just overturn a previous decision, but that's pretty unlikely, especially in the short term. I think a group attempting this would have better odds of facing Rule 11 sanctions than of achieving success.
    – bdb484
    Sep 19, 2021 at 3:35
  • thanks for the info! Sep 19, 2021 at 5:43

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