Obergefell, Eleven Years On

The question of whether the Supreme Court should revisit the decision, as it did Roe, is on the table.

Eleven years ago, in a 5–4 ruling, the Supreme Court announced its discovery of a hitherto unknown constitutional right — a right to same-sex marriage. In Obergefell v. Hodges, the Court invalidated state laws — enacted by the people’s elected representatives in state legislatures from Michigan to Texas — defining marriage as the conjugal union of husband and wife, and ordering all states to issue marriage licenses to same-sex partners.

Vindicating Aristotle’s observation that laws perform a teaching function, support for “same-sex marriage” rose rapidly and dramatically in the wake of the Court’s ruling. In just a few short decades, the public moved from being overwhelmingly opposed to redefining marriage to include same-sex partnerships to strongly in favor of marriage’s redefinition.

Now, however, support for same-sex marriage is declining, after peaking at the height of woke ideology’s influence in 2021 and 2022. A June 2026 Gallup survey found that support for same-sex marriage had dropped 6 percent from 2022; furthermore, just 35 percent of Republicans supported same-sex marriage, compared with 56 percent four years prior. With the gradual — and predictable, in light of the LGBT movement’s overplaying of its hand in recent years on issues such as transgenderism — shift in public opinion, the question of whether the Supreme Court should revisit Obergefell, as it did Roe v. Wade, is on the table.

In thinking about whether reversing Obergefell would be the right thing for the Supreme Court to do, we must recall that the decision did not overturn “bans” on same-sex marriage, for traditional marriage laws did not ban anything. They didn’t ban polygamy, though other laws did precisely that. They didn’t ban homosexual relations. They didn’t ban same-sex wedding ceremonies — in pro-gay churches, in homes, on beaches or anywhere else. What they did was recognize as marriages unions that were monogamous, pledged to permanency, and between a man and a woman.

The ruling in Obergefell forbade states from defining marriage as the specific kind of relationship — the monogamous and permanent union of man and woman — that is substantively and normatively structured by its orientation toward procreation and child-rearing. Obergefell required states, even against the expressed will of the citizens and their representatives, to adopt a highly revisionist view of marriage as merely a form of sexual-romantic companionship or domestic partnership — a relationship that lacks any inherent relationship to the begetting and raising of children.

What the justices in the majority jettisoned was the conception of marriage that, beyond being what marriage actually is, also serves to justify why law and government have an interest in defining and regulating marriage in the first place. The state has an obvious interest in helping children to enjoy the inestimable benefits of being brought up in the committed love of the two people whose coming together brought them into being. The state has an interest in children being blessed with both paternal and maternal influences, care, and role models.

The central fact — and it is a fact — that must be borne in mind when thinking about Obergefell is this: The justices could point to no warrant for their decision in the text, logic, structure, history, or original public understanding of the Constitution. Because they lacked any such warrant, their decision was, to quote the famous dissent of Justice Byron White in Roe v. Wade, “an exercise of raw judicial power.” It was legislation masquerading as constitutional interpretation — a federal judicial usurpation of the authority left by the Constitution in the hands of the people of the states and their legislatures.

The Court claimed that state laws relying on a traditional, conjugal definition of marriage discriminated against same-sex partnerships in a manner that made them presumptively unconstitutional. This, however, could not be further from the truth, for the states did not flout any constitutional provision, federal statute, or historical precedent in choosing to affirm marriage according to its timeless definition. Indeed, the Constitution does not define marriage; it leaves that to the states.

The Court should have abstained from intervening in the matter precisely because the Constitution does not define marriage. In 2015, there was a dispute among Americans at all levels about the nature and purposes of marriage and how marriage should be defined. Where the Constitution is silent, disputes among the American people regarding policy are rightly left to be resolved through the ordinary processes of deliberative democracy, as prescribed by the federal and state constitutions. It is the duty of the courts, including the Supreme Court, to let such matters play out in the state legislatures and in the public square, unless Congress acts pursuant to one of its delegated powers or the American people decide to amend the Constitution.

Many defenders of the Court’s intervention in Obergefell cite the Court’s ruling guaranteeing the right to marry interracially in the 1967 case Loving v. Virginia. In that case, the Supreme Court rightly struck down laws that invidiously classified people based on an arbitrary feature utterly unrelated to marriage itself, namely, race. However, with respect to marriage, sex is anything but an arbitrary quality. Marriage is, and had always been understood to be, a form of relationship that brings together the two complementary sexes. Of course, not all married couples in fact have children, but every marriage — at least until marriage was redefined to eliminate the requirement of sexual complementarity — is the kind of union that is per se apt for the having and rearing of children. It is precisely the type of relationship that is ordered to and would naturally be fulfilled by the spouses having and rearing children together.

Those responsible for the misbegotten laws banning interracial marriages did not deny that such marriages were possible, i.e., that they were in fact conjugal unions — genuine marriages as marriage had always been defined. In other words, they didn’t suppose that marriage was by definition a relationship uniting spouses of the same race. Instead, they enacted such laws because of their irrational aversion to marriages between blacks and whites, rooted in the bigoted assumption that the former were inherently inferior in dignity and moral standing to the latter.

Unlike racial categories, which are indeed arbitrary, the two sexes are necessarily interdefined: You cannot intelligibly explain either without reference to the other. What makes a male a male is biological organization toward the production of the male gamete; what makes a female a female is biological organization toward the production of the female gamete. The male and female gametes need each other to produce a new and distinct individual of the species.

Yes, same-sex couples can adopt or use reproductive technology. But male-female pairing is inherently linked to procreation, and same-sex coupling isn’t.

That inherent link is reflected in the nearly unbroken global historical consensus requiring sexual complementarity to make a marriage. Across intellectual and religious traditions and over a vast swath of time, marriage was understood to be an exclusively male-female bond. This consensus has prevailed both in societies that judge same-sex intimacy to be immoral and those which permit or condone it; it has prevailed in societies that are shaped by Judaism and Christianity and those that are not.

The majority in Obergefell, hastening to reach the conclusion that the justices voting in favor seemed so desperately to want as a matter of policy preference, essentially ignored the historical record and witness of human societies from time immemorial. In doing so, it entirely missed the profound respects in which marriage as an institution has been shaped by a concern for procreation and child-rearing. What was factored out of the decision altogether was the interests of children in a healthy and flourishing marriage culture — one in which the children and their vulnerabilities and needs are paramount.

Laws shape culture. Obergefell has taught the American people that marriage is not a distinct and special form of human relationship whose structure and norms reflect its importance for procreation and child-rearing. Rather, the ruling has promoted a misunderstanding of marriage as simply an especially emotionally intense form of romantic friendship (with children, and their well-being, rendered merely incidental considerations, if they are considerations at all).

The Court’s faulty definition of marriage has contributed to one of the sexual revolution’s greatest harms: the separation of children from their biological parents. Legal provisions such as no-fault divorce and same-sex marriage have had the effect of depriving children of stable homes with a mother and father pledged to each other in a permanent and exclusive commitment.

This is why state laws reflecting the conjugal understanding of marriage are reasonable, regardless of which view of marriage — traditional or revisionist — a judge happens to hold. It is clearly reasonable for states to be concerned with enacting laws that both uphold the moral truth about marriage and enshrine in the law the understanding of marriage that places children and their rights at its center.

Partisans of same-sex marriage would like us to think that there is no going back — but they’re wrong about that. True, the Supreme Court, in overruling Obergefell, might reasonably hold that the marriage licenses of those same-sex partners who already have them cannot be revoked or invalidated, in effect grandfathering in same-sex marriages licensed in the Obergefell era. But if Missouri or Mississippi or Montana wishes to restrict eligibility for marriage licenses to opposite-sex partners, the Supreme Court should correct its eleven-year-old mistake and acknowledge and honor states’ legitimate constitutional authority to so define marriage.