More whisting dixie, do you agree with me that a federal gay marriage ban passed by Congress would be constitutional under the 14th amendment? Would any conservative Justice uphold it?
As you may recall, I am a strong proponent of Congress using Section 5 of the 14th Amendment (which grants Congress the “power to enforce, by appropriate legislation, the provisions” of the 14th Amendment) to legislate that the word “person” in Section 1 of the 14th Amendment includes human beings in any stage of gestation, which would in turn trigger protection under the Privileges or Immunities (if SCOTUS ever resucitates it), Due Process and Equal Protection Clauses. While it is possibly that courts would rule that Congress can’t use its Section 5 power if its effect is to abridge a “right” that the courts previously had created (i.e., the “right” to abortion), there certainly is a very strong argument that Congress has the authority to *expand* the persons to whom Section 1 of the 14th Amendment applies. There also would be a good chance that even if only four SCOTUS justices agreed with Congress’s use of Section 5 in such case, that a fifth justice would rule that Congress would be allowed to pass such law pursuant to the Commerce Clause (as “regulation of the abortion industry, which affects commerce among the states”) or some other of its enumerated or implied powers (what’s good for the Obamacare goose is good for the pro-life gander).
What you are proposing, on the other hand, is not plausible. Using Section 5 to deny the use of the DP and EP Clauses to matters involving marriage, or matters involving homosexual conduct certainly would be struck down by the courts. Matbe Congress could use Section 5 to legislate for prohibiting discrimination against persons who oppose same-sex marriage for religious reasons, but that’s just about it.
The legislative power that Congress did have was to approve something like DOMA (which denied federal recognition for same-sex “marriages” and prevented courts from forcing states to recognize same-sex “marriages” from other states if such “marriages” would be illegal in such state), which it did, but out of which Kennedy made toilet paper for his own consumption.
The other thing that Congress could have done, and still could do, is to propose an amendment to the U.S. Constitution that either (i) declares that the legality or recognition of unions other than those composed of one man and one woman, or the granting of the rights or incidents of marriage to any group of persons other than a married couple composed of one man and one woman, is reserved to each state acting through its state legislature or voters, and that nothing in the U.S. Constitution, U.S. federal law or treaty, or any state constitution may be interpreted to create any right to marriage or to the rights or incidents of marriage for groups of persons other than a married couple composed of one man and one woman or (ii) declaring that marriage in the United States shall be limited to the union of one man and one woman, and that no state, nor the federal government, may recognize or grant the rights or incidents of marriage, to any group of persons other than a married couple composed of one man and one woman.
The second option would have been best, of course, but even back in 1998 or so it would have been difficult to obtain 2/3 in each house of Congress to send the amendment to the states. The first option surely would have been approved by Congress in the late 1990s and easily would have obtained ratification by state legislatures in 38 states, which would have resulted in same-sex “marriage” being legal only in states whose state legislature or voters approved it. Alas, we would not be able to get 2/3 of each house of Congress to approve the first option today, or in the foreseeable future (although I think that the 38-state-legislatures requirement would be doable).
It would be far easier to elect a conservative Republican president that would nominate, and a Republican Senate that would confirm, a conservative judge to replace Ginsburg or Kennedy when they retire or die (which likely will occur within the next 8 years for one or both or them), and then have Obergefell overturned when a state marriage restriction goes back before SCOTUS.