The Legacy of Obergefell, Ten Years Later
The tenth anniversary of Obergefell v. Hodges today is a fitting occasion for taking stock of that ruling’s legacy in law, politics, and culture. For some time in the intervening years it seemed that same-sex marriage—and the cause of “LGBTQ” rights for which the decision spoke—had achieved a durable and unmitigated triumph. But only a decade later, support for same-sex marriage has eroded from its post-Obergefell peak, the constitutional doctrine on which it rested is newly in question after the demise of Roe v. Wade, and the LGBTQ coalition is fracturing, mostly because of conflict over the “T” for transgender. The single most durable legacy of Obergefell, it would seem, is the damage it has done to the culture of marriage and family in the United States.
Let’s begin with the law. Obergefell was the culmination of a long campaign by same-sex marriage advocates, whose champion on the Supreme Court for two decades was Justice Anthony Kennedy. He had struck the first blow for the cause of “gay rights” in Romer v. Evans in 1996, when he wrote the Court’s opinion invalidating a Colorado constitutional referendum that prevented local governments from extending civil rights protections on the basis of sexual orientation. In this 6–3 ruling, the basic contours of a twenty-year debate were set: for Kennedy, “homosexual” was the answer to a “who” question, while for Justice Antonin Scalia, it was the answer to a “what” question. Kennedy, that is, treated “homosexual” or “gay” as describing a class of persons, known by a characteristic as immutable and constitutive of identity as race or sex, and thus entitled to a kind of “dignity” in the law; Scalia, dissenting, treated “homosexual” chiefly as descriptive of acts, behaviors, and inclinations—what people do or desire—which the law may condemn or disapprove on moral grounds.
Scalia was right to say that Kennedy’s opinion in Romer “has no foundation in American constitutional law, and barely pretends to.” But Kennedy was just getting started. In 2003’s Lawrence v. Texas, he wrote for a 6–3 Court that overturned the 1986 precedent of Bowers v. Hardwick, and thereby enshrined in the Constitution a right to commit homosexual sodomy. In part Kennedy relied on his own contribution to the controlling joint opinion in Planned Parenthood v. Casey (1992), which had reaffirmed the abortion precedent of Roe v. Wade on the ground that “there is a realm of personal liberty which the government cannot enter.” And in part Kennedy relied on the proposition that a ban on homosexual relations was “an invitation to subject homosexual persons to discrimination.” Again, the governing presumption was that the Court was discussing a matter of identity, not of conduct.
Justice Scalia again dissented in Lawrence, and among other things said, regarding Kennedy’s assurance that the decision had no implications for a right of same-sex marriage, “Do not believe it.” He was proved right just five months later when the Massachusetts Supreme Judicial Court cited Lawrence for support of its decision, the first by the high court of any state, that same-sex marriage was a constitutional right. This decision, Goodridge v. Department of Public Health, triggered the furious politico-legal maneuverings of the next dozen years. Already early stirrings of the gay marriage movement had prompted passage of the federal Defense of Marriage Act in 1996, denying federal recognition of any state-recognized same-sex marriage, and permitting states to decline recognition to same-sex couples married elsewhere. Now, after Goodridge, groups such as the National Organization for Marriage pressed successfully for state constitutional amendments—ultimately in three-fifths of the states—protecting marriage as a conjugal union of one man and one woman.
But if tradition had the voters, innovation had just enough judges on its side. When California’s Proposition 8 protecting marriage was struck down by federal district and circuit courts, the Supreme Court in 2013 acted on, shall we say, an unusually scrupulous devotion to the doctrine of standing in order to let those rulings stand without itself reaching the merits. And on the same day it struck down the no-federal-recognition provision of the Defense of Marriage Act in United States v. Windsor. These rulings, in turn, were the green light for federal judges in the lower courts to start invalidating state constitutional provisions on marriage all over the country. And when they did so, the Supreme Court routinely denied certiorari, until the Sixth Circuit upheld marriage laws in its four states, causing a circuit split the Court had to resolve. (And Justice Kennedy, in Obergefell, had the gall to cite the numerous lower-court rulings for same-sex marriage, which he had been instrumental in encouraging and declining to review, as evidence of an enlightened trend sweeping the country.)
In many respects then, Obergefell, when it came in 2015, was no surprise at all. Public opinion was shifting to follow the lead of the activist judges as well as of elite institutions: the academy, the media, the arts, and entertainment. Resistance remained—and still remains—strongest among the most orthodox adherents of traditional religions. But the legal arguments that the Constitution protected the right of same-sex couples to marry were as weak as they always had been. Was it that marriage was too important to be denied to such couples? Did a hard-to-focus, generalized liberty under the due process clause protect their right to marry? Was it really the dictate of the equal protection clause that was at stake? From Justice Kennedy’s opinion for the 5–4 Court, one could not really say.
The Obergefell dissenters were properly outraged. Chief Justice John Roberts wrung his hands about “judicial supremacy” and the obviously political character of the ruling. Justice Scalia likewise characterized the decision as a “judicial Putsch.” Justice Clarence Thomas saw in Obergefell “further evidence of the danger of substantive due process.” Justice Samuel Alito noticed the “distinctively postmodern meaning” that the majority gave to “liberty.” And both Thomas and Alito warned of the new dispensation’s threat to religious liberty and (in Alito’s words) its “marginalization of the many Americans who have traditional ideas.”
The warnings were not overblown. The past decade has seen repeated litigation stirred up by the triumph of same-sex marriage, involving florists, bakers, website designers, foster-care and adoption agencies, and counselors. That some of these dissenters from the new morality have won their cases, in whole or in part, does not mean the current regime of our constitutional law is responding coherently, but only that it is coping, rather sputteringly, with problems of its own making.
Earlier this month we saw how far Justice Kennedy’s program has continued to advance, even after his retirement from the Court in 2018. Ames v. Ohio Department of Youth Service, decided unanimously by the justices with an opinion by Justice Ketanji Brown Jackson, has been heralded by conservatives for rejecting the proposition that in order to win a case under Title VII of the Civil Rights Act, members of majority groups must clear a higher bar than minorities for showing they have faced employment discrimination. In a case involving racial, sexual, or religious majorities, this would indeed have been cause for celebration. But Ames was a case of sexual-orientation discrimination—here a heterosexual woman demoted in favor of homosexuals—and a claim of such discrimination was not even a recognized cause of action until the 2020 ruling in Bostock v. Clayton County. In that 6–3 decision, Justice Neil Gorsuch employed flagrantly fallacious reasoning to hold that legislation referring to “sex,” passed in 1964, had all along (he now discovered) forbidden employment discrimination on the basis of sexual orientation or transgender status. The justices dissenting in Bostock—Alito, Thomas, and Brett Kavanaugh—rightly complained that the majority was legislating, not judging. Five years later in Ames, they joined a ruling that relied silently but entirely on the judicially created cause of action invented in Bostock.
Bostock, of course, was predicated on the thinking that gave us all the “gay rights” rulings from Romer to Obergefell—that sexual orientation, like biological sex, is a fundamental feature of personal identity, thus cognizable in law and essential to the recognition of a person’s dignity. But Bostock now added transgenderism to the mix as well, riding the wave that has crested in our culture since Obergefell. Fortunately, the majority of the Court declined to follow Bostock’s logic—though escaping it took some adroit casuistry—in this month’s United States v. Skrmetti, upholding a state law prohibiting doctors from “transitioning” minors either medically or surgically. But the justices had a hand in creating the problem that brought Skrmetti to the Court, for it is no coincidence that the incidence of gender “transition” among both adults and children has soared since the acceptance of same-sex marriage in our legal order.
What is the connection? Both same-sex marriage and transgenderism depend on what Robert P. George and Patrick Lee call “body–self dualism,” the notion that we are not our bodies—that our “selves” are to our bodies as the owner is to property that he can do with as he will. If my body is my possession, rather than being me because it is bound up inextricably with what animates it (anima—soul, mind, spirit), then I can do what I like with it, and have no obligation to its—my—integrity as an embodied person. Omnisexuality becomes possible and permissible, and so does the willful alteration of the body, medically or surgically, to suit my preferred (or disordered) vision of who I wish to be. The logic of sexual complementarity and fidelity in marriage collapses, and the mind’s mistakes about gender (a wholly mental construct) can trump the reality of the sexed body.
There are encouraging signs—Skrmetti is one—that transgenderism has already peaked in our culture. Women in particular, including many lesbians, are rebelling against the invasion of their sex’s private spaces and athletic competitions by “transgender women” who are truly men. And the evidence is mounting that wide swaths of the medical profession have been committing malpractice, particularly with children in prescribing puberty blockers that ruin their health, render them sterile, and put them on a path to surgical mutilation. There is bound to be a woeful reckoning for these harms.
But all this damage—legal, cultural, personal—is inseparable from the Supreme Court’s malpractice in Obergefell. It is not surprising that same-sex marriage has been largely a cultural failure, as both its critics and its advocates have recently noted. The Court did not “open” or “expand” marriage ten years ago; it redefined and deconstructed it. Marriage is in a state of crisis in the West, of which our declining birthrates are only the most obvious marker. In vitro fertilization, gamete sales, surrogacy, de facto baby shopping, genetic screening (and destruction) of embryos, polyamory—all of these harbingers of Huxley’s brave new world are connected to the Obergefell project.
Politically, Obergefell probably aided the Trump campaign in 2016, particularly when the candidate published his list of possible nominees to succeed Justice Scalia, thereby reassuring conservatives interested in the Court. Legally, there is a glimmer of hope in the reversal of Roe v. Wade by 2022’s decision in Dobbs v. Jackson Women’s Health, achieved by a Court with three Trump appointees. If the abortion precedent could be overturned—though it took a horrifying forty-nine years—perhaps Obergefell can be as well. Justice Thomas, in his Dobbs concurrence, openly called for reconsideration of the same-sex marriage ruling. This month, the Southern Baptist Convention committed itself to the eventual reversal of Obergefell. And public opinion surveys show declining support for same-sex marriage and the transgender agenda.
But a course correction in our culture, politics, and constitutional law will be extremely difficult. Supreme Court decisions generally have staying power, a prejudice in their favor premised on the (often mistaken) notion that the justices act on high principles rather than low politics. What energized the pro-life movement for half a century of opposing Roe was the cause of life itself—the fact that every abortion destroys an innocent human being. Without such obvious victims, the work of selling the public, our political class, and the judiciary on the harms the same-sex marriage project has done—to our society as well as our law—will take patience, persuasion, and persistence, as well as very thoughtful legislation and litigation strategies. Unquestionably the cultural case will need to be made first, and strongly.
But that is the task before us, if we believe that the truth about marriage, the family, and children really matters.