How the Obergefell Decision Misled Courts, Corrupted Law, and Victimized Children

Author: John Stonestreet

On June 26, 2015, the U.S. Supreme Court created a legal right for same-sex couples to “marry.” In just a little over a decade, the Obergefell v. Hodges ruling has proven to be among our nation’s most consequential and harmful decisions, especially for children. To borrow a phrase originally written about Roe v. Wade, the Obergefell decision “is not constitutional law and gives almost no sense of an obligation to try to be,” but rather invented a “right” it then mandated. Even so, courts and government officials ever since have treated Obergefell as if it accomplished much more than it did.

In Obergefell, the Court asserted that civil marriage is not the procreative union of husband and wife but rather a government device to give benefits to adult companions. However, numerous courts since have ruled that Obergefell requires states to also give same-sex partners legal access to and custody of children otherwise not theirs. Among the most consequential of these cases include McLaughlin v. Jones, Boquet v. Boquet, Henderson v. Box, Potts v. Potts, Schaberg v. Schaberg, Harrison v. Harrison, and In the Interest of D.A.A.-B.

Since same-sex couples cannot procreate, advocates demand access to reproductive technologies to satisfy the demands of same-sex couples for children. So, children are bought and sold through IVF and surrogacy. “Mothers” are rented for their wombs. “Fathers” are reduced to sources of genetic material. Human connection is manufactured and not created through meaningful relations. The family is drained of its profound nature as God intended, as well as its historic significance and legal authority.

While the Court may not have intended the antihuman techno-regime that has resulted from Obergefell, it left wide open these legal questions. Rather than merely “expand” marriage to include other relationships, as we were told, Obergefell rejected marriage as God designed it and as it has always been understood. Lawmakers and judges—not to mention educators, business leaders, consumers, and professional athletes—were all strongly pressured to succumb to this new vision.

However, there are ways for officials to honor the natural family and resist hostile innovations against it. A simple step is for states to maintain original birth certificates that record the child’s mother and father and exclude persons who are neither. States can settle child custody contests with a default rule in favor of fit natural parents, and against genetic strangers. States can enforce already existing adoption laws, requiring the non-natural mother or father of the child to adopt before being considered a legal parent, rather than inexplicitly creating exceptions for same-sex couples.

In many states, however, essential questions about who is a parent have not been carefully addressed. Even worse, in many states, they have been misinterpreted to favor non-traditional family arrangements. Two years after Obergefell disrupted the institution of marriage, the Court ruled in Pavan v. Smith that birth certificates no longer needed to show the genealogical mother and father. The intent was to allow same-sex partners to be named parents of the child born, even though one or both may not be related to, or even have an adoptive relation with, that child. Even worse, to keep up with the emerging gender ideologies, numerous courts ruled it unconstitutional to presume the “husband” of the woman giving birth is the natural father, or even a man at all.

All of this was, of course, a way to enable same-sex couples to acquire children. Not only does this deprive children of their mother, father, or both, but according to several studies and a growing number of horror stories, children raised by same-sex couples are at increased risk of harm.

Though lower courts continue to accommodate progressive ideals of sex, marriage, and “gender,” the fact remains that Obergefell did not address how States should treat paternity, legitimacy, custody, adoption requirements, or birth certificates. The Court majority in Obergefell did not cite or even evaluate even one state law on any of these issues. Even if it had, the Supreme Court has no authority to invalidate historic state laws without ever having had a case before it on such specific questions. Normally the Court would evaluate each statute and then rule on the case. In other words, Obergefell did not—and could not—topple historic state laws about the makeup of family that were not presented, briefed, argued, or even identified in the proceedings.

Similarly, the Obergefell decision does not raise or resolve the question of a child’s relationship to his mother and father. And yet, because of Obergefell, subsequent rulings have—for the first time in the history of the world—treated laws that protect children as unconstitutional. Elected officials have every reason to refuse the ousting of venerable family law standards, and to reinstate those that have been set aside.

Decisions like Obergefell not only normalize certain legal interpretations but, more importantly, they can reshape the cultural imagination. Millions of Americans, including Christians, now believe and live as if Obergefell has “settled the question of same-sex ‘marriage’.” It did not. And we must not think it did. Too much is at stake, especially for children.

To learn how to center the rights and wellbeing of children in conversations about marriage and society, check out the Greater Than Campaign, a coalition of leaders, ministries, and citizens. Learn more at GreaterThanCampaign.com.