Obergefell’s Poison

The United States Supreme Court has described the design of the fundamental human institution acknowledged across the earth since the dawn of time, that anchors in place the public understanding of sexed human nature, as an unconstitutional form of discrimination. The husband-wife legal standard, on the Court’s account, is an injustice visiting humiliation, dehumanization, and dignity-denial upon same-sex couples and their households. And on the Court’s view, civil marriage rather than grounded in a reality that transcends politics—therefore calling for government deference to it—is instead a political device the state employs to elevate the psychological condition of adults joined in relationships it deems worthy of that beneficence.

One could wonder on such an account how long will endure the wide range of other legal standards that depend for their existence and justification on the unique authority and value of the complementary relation of male and female, of mother and father, that the Court now classifies as an intolerable baseline for family law.

Within the emerging terms of the ascendant post-Obergefell legal model, the rights of same-sex custodians of a child are coextensive with those of a child’s mother and father. Accordingly, how the law understands the relation and status of “parent” is being redefined. Because the kinship bond is not a feature of both same-sex partners’ relationship with children whom they have or wish to have in their joint custody, the arguments for parental prerogatives based on procreative relation are now in principle unavailable because no longer defining of the category. Siring and birthing a child cannot be a defining feature authorizing and explaining parenthood for anyone if two men are to be the relational equivalent of husband and wife, of mother and father.

Of course, standing against all of this novelty is our juridical tradition which, like wise King Solomon, deems the distinction between a mother and a stranger to be legally decisive, rather than irrelevant. Indeed, it is because human beings are in fact primordially familial, that is, they are not blank and isolated units only later organized into clusters by contract or state decree, that the law has acknowledged rights and duties within the matrimonial and mother-father-child relationship. The law has always viewed these bonds as anterior to and transcending political systems, and therefore are those to which the law conforms itself and in terms of which it identifies what constitutes justice for persons.

But on the Court’s new same-sex marriage model, the family is a political determination bestowed by state edict grounded in changeable assessments of utility and wish.

This explains why courts adjudicating claims after Obergefell have, for example, announced that a child’s birth certificate as well as the custody of the child himself, are “benefits” the state bestows upon adults whom it has licensed. And looking at the historic evidentiary presumption that the wife’s husband is the biological father of her child, courts declare (in the name of “equality”) that the licensed female partner of a birthing mother must also be presumed the father of the child; except now they call her a “parent”—“parent” being the de-sexed, non-biological legal category that replaces the natural relation of father now that civil marriage is defined in terms androgynous and sterile.

Of course, for courts to “constitutionalize” a requirement that states reduce maternity and paternity to mere biological inputs vacant of personal meaning and responsibility so that partners in same-sex relationships may be empowered to lay claim to other people’s children, upends a great deal more than the information imposed upon state birth certificates. It both topples the historic edifice of state family law and removes from public authority a vision of human nature that acknowledges the primal meaningfulness of a child being born of this mother and this father.

The wider cultural spread of the post-Obergefell framework is on display in the likes of the familiar social media phenomenon of celebrating the photographed, shirtless male couple who together in a hospital room hold a newborn infant whom they had purchased and procured by the (now-government-authorized) mechanisms of human trafficking: In their case, this involves purchased ova, a laboratory-conceived child made to be motherless, then surrogate-gestated and snatched from her after birth for their possession.

It is, as you surely know, now in-fashion to enlist technicians to design and produce to specification a helpless child as an accessory of adult lifestyle-wish. Genealogy is rendered both irrelevant and un-trackable as it vanishes into the ether of gamete donor anonymity and bio-technocratic machinism. The widespread employ of these tech processes is facilitated by the moral illiteracy into which we’ve collectively been tutored by, in no small part, American officialdom as it has subverted the law to erase the ethic of the matrimonial family.

And this brings us to the deeply cynical aspect of same-sex marriage advocates’ claim as inheritors of the civil rights mantel, extending from the black civil rights movement. To set up the stark contrast between the two, here I’ll mention Justice Ketanji Brown Jackson’s poignant remarks at the White House after the Senate confirmed her to her post at the Supreme Court. She spoke of her service “while ‘bringing the gifts my ancestors gave. I am the dream and the hope of the slave.”

In response to Justice Jackson’s vision of her own identity as something she received, and as informed by the admirable hopes and noble endurance of her ancestors, the Obergefell brigade can only be uncomprehending and dismissive. For their program abolishes the categories necessary for Justice Jackson’s statement even to register. On their description of constitutional rights (that requires the disqualification of a unique legal standing for matrimonial conjugality), our forebears are likewise pointless except in the mechanical sense of genetic “standing reserve,” as contributors of biological parts and functions; they offer nothing personally meaningful to who we are.

And this is precisely the premise that authorizes these advocates to insist, and for courts to affirm, that a same-sex couple in possession of a child unrelated to one or both of them is constitutionally equal to and indistinguishable from a husband and wife with the offspring of their union. And this premise also helps explain why the very first sentence of the Obergefell opinion describes a person’s identity as something the Constitution arranges to be a matter of individual self-definition. (Where else could identity possibly come from?)

So the Obergefell upheaval understandably has been taken to imply that genealogical association (that is, roots)—and the inescapable human resonance with it—are legally inadmissible and irrational. Such is this rage against the beautiful, given order of organically relational humanity that it refuses to countenance the character of societies through all time, its works of literature and art, and the defining features of our own nation’s political and cultural experience. Thus Professor Velleman, in elaborating the moral incoherence of the gamete-donation industry of technological child-creation, writes that for anyone to tell a child that his mother or father—his forbears and ancestors—don’t matter, “is to tell what the experience of all times and cultures condemns as a lie.”

Yet the lower court, legislative, and bureaucratic trend has been to promote this lie, as they propose that Obergefell requires the “gender-neutralizing” of our historic and indelibly sexed legal standards.

Now. It is important to clarify that there are, we might say, two Obergefells: First is the “cultural-watershed-Obergefell” in which our highest Court defied God, human nature, our legal tradition, and the uninterrupted testimonies of history. Second is the “legal-ruling-Obergefell” resolving a dispute between litigants. Both Obergefells are legally consequential, even though only the second Obergefell is (procedurally speaking) the one that ought to matter—and only matter as far as our constitutional system that circumscribes the effect of such rulings permits. But because the whole point of Obergefell’s audacity was to knock over a cultural pillar that defines and orients whole fields of law dealing with human relationality, it is not surprising that courts and other government officials have treated Obergefell as a command to work out and implement the entailments of the Supreme Court’s inversion of the civil marriage paradigm.

What I am aiming to emphasize here, of course, is that the networked nature of legal principles is such that when a prominent, archetypal legal standard (like the meaning of civil marriage) is distorted into a contradiction of itself, that inversion initiates as well a sort of “conceptual domino-series collapse-run” (let’s call it), because of how ideas in the law are situated in proximity and dependence, moving out from certain vital command points that define the field and its range of options.

This is why Prof. Courtney Cahill has written that “the marriage equality precedent paves the way for disestablishing not just traditional marriage but also the traditional family.” Those who think that mother and father will continue to enjoy undiminished the law’s deference to them as rights-bearing authorities after the law has disposed of all of the premises that make that deference sensible, may be failing to come to grips with how these things work.

Facing this sort of invitation to social reorganization in terms implying the oblivion in law of human nature, a conservative community might be inclined to consider alternatives. And it so happens that our American system of federalism and departmentalism continues to provide authority for adhering to historic legal norms. States continue to possess the right and responsibility to refuse malignant departures from legal tradition and to maintain their family law standards that acknowledge the momentous distinction between children’s primal relation to the union of mother and father, and their non-relation to same-sex couples. The continuing existence of moral and constitutional authority for states to hold the line therefore advises the following qualification to my foregoing lament.

There is a crucial difference between the two different Obergefell's that I mentioned. That is, between (first) the conceptual significance of ideas emblematically present in Obergefell, and (second) the procedural power, within our authority-limiting government structure, of Obergefell’s unprecedented, tendentious, 5-votes-to-4 judicial ruling that vetoed the Western legal tradition generally, and American legal history, federalism, and constitutional and legislative standards specifically, without offering any legally familiar or soundly reasoned justification for doing so.

The merciful endurance of our legal tradition is such that we’ve not yet seen the full systemic reach and realization of the antihuman and totalitarian principles embedded in Obergefell.

States are under no obligation to adopt from Obergefell such implications of family law upheaval and contradiction as the Court’s base ideas appear to imply but in fact were not litigated or ruled upon in that case. The Court in Obergefell gave precisely no consideration to the millennia-honored legal unanimities of human meaning in filial bonds, or to the Court’s own due process jurisprudence that privileges blood ties, or to our historic domestic relations traditions based in the rudimentary and irrepressibly intuitive truths of motherhood, fatherhood, and ancestry.

The Court in Obergefell not only did not identify or grapple with—let alone rule on—the immense controversies in treating the natural family as an unconstitutional legal norm, the Court did not so much as evince an awareness of the enormities implicated in this sort of overhaul. And a Court majority simply cannot abolish maternity and paternity as legal pillars merely through inference from one of its other assaults against the family. Public officials should not (as one lower court judge has written) “impute to the Justices decisions they have not made about problems they have not faced.” Hence government officials still may legitimately refuse the demand, for instance, of a person in a same-sex relationship to be automatically identified in law as the parent of a child unrelated to him or her thereby amputating the office and relationship of father or mother not only from the child so affected but from the society and the legal order that would embrace such a practice as a requirement of justice.

The conversion of the family from a natural institution embedded in creation and revealing human nature, now into a purely political concoction existing at the behest of our civil superintendents—thus susceptible to total reorganization by them—is the contest now underway.

The elimination of the sex distinction as a matter of legal authority and consequence entails a civilization never before seen in the history of the world, and (notably) one whose features were not forecasted to us by those who nevertheless deemed themselves authorized to command it.

The merciful endurance of our legal tradition is such that we’ve not yet seen the full systemic reach and realization of the antihuman and totalitarian principles embedded in Obergefell. But we’ve seen enough, and otherwise can discern the trajectory that Obergefell has invited. Any conservatism worthy of the name must commit itself to removing this poison from our law.

The foregoing is the text of the author’s speech at the National Conservatism conference in Washington, D.C., on September 3, 2025.

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