Five Reasons Why Obergefell Remains Constitutionally Vulnerable

The Supreme Court’s 2015 decision in Obergefell v. Hodges stands as one of the most egregious examples of judicial activism in modern history. In a single stroke, five unelected lawyers redefined the timeless institution of marriage for the entire nation, bypassing the Constitution, the democratic process, and millennia of human experience rooted in biblical truth and human nature. Like Roe v. Wade has been, Obergefell must be overturned. Here are five compelling reasons.

First, Obergefell was unconstitutional from the day it was decided. Justice Samuel Alito rightly declared in Dobbs v. Jackson Women’s Health Organization that Roe was “egregiously wrong from the start.” The same verdict applies to Obergefell.

The Constitution makes no mention of a right to same-sex marriage. It contains no substantive due process clause empowering judges to impose their policy preferences on the states. The decision rested not on the text, history, or tradition of our founding document, but on the political desires of activist justices.

Marriage, as understood by the Founders and by virtually every society until very recently, is the union of one man and one woman. The Court had neither the constitutional nor the moral authority to rewrite that definition.

Second, the most constitutionally faithful justice on the Supreme Court has already called for its reversal. In his concurrence in Dobbs, Justice Clarence Thomas urged the Court to reconsider all of its substantive due process precedents, explicitly naming Obergefell.

Thomas correctly noted that the Due Process Clause guarantees fair procedures, not a license for judges to discover new “fundamental rights” untethered from the Constitution’s text. So-called substantive due process has a troubled history and destroys our constitutional order by exalting judicial will over the people’s authority. Thomas’ call was clear: these demonstrably erroneous decisions must be corrected.

Third, a majority of the current justices already understand that the Constitution does not prohibit states from protecting natural marriage. Clarence Thomas, Samuel Alito, and John Roberts all dissented in Obergefell.  Roberts even warned that the majority had abandoned judicial restraint for raw policymaking.

The three newest Republican-nominated justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—joined the Court that correctly returned abortion to the democratic process in Dobbs. They grasp that the Constitution’s text does not create a national right to redefine marriage.

Barrett, both as a law professor and during her Supreme Court confirmation hearings, has explained that court precedents remain subject to reversal unless they qualify as “super precedents,” which are deeply embedded in law and culture. Obergefell is no super precedent. Justice Kennedy’s anxious post-decision defenses of the ruling, combined with ongoing state-level efforts to prepare for its possible overturn, prove that Obergefell has never been widely accepted and therefore can—and should—be reversed.

Fourth, the slippery slope unleashed by Obergefell has been steep and damaging. What began as a claim for same-sex marriage quickly morphed into a radical transgender agenda that denies biological reality. Americans are rightly pushing back against LGBT ideology in schools, sports, and medicine. Meanwhile, faithful Christians—bakers, photographers, and adoption agency employees—have faced relentless persecution for simply living out their biblical convictions about marriage.

The promise that Obergefell would bring “live and let live” tolerance proved horrendously false. Instead, it empowered a sexual revolution that punishes dissent and marginalizes those who hold to the traditional—and biblical—understanding of family that built Western civilization.

Fifth, the impact on children—a key justification offered by Justice Kennedy—has not aged well. Kennedy claimed his decision served the dignity of children living in same-sex households. Yet multiple studies show that children thrive best with a married mother and father. Those raised in same-sex households face elevated risks in emotional well-being, educational outcomes, and long-term family stability.

Using innocent children as instruments for adult ideological experiments is profoundly unjust. Society has a solemn duty to prioritize the welfare of innocent children over political correctness.

The American people deserve the chance to deliberate these profound questions through their elected representatives, as the Constitution demands. Returning marriage policy to the people would restore self-government and allow citizens to protect both children and the institution of marriage—just as they did in nearly every state, including California, before Obergefell.

As Americans, we acknowledge the natural and Biblical roots of Western morality and recognize that marriage is a covenant between one man and one woman. As constitutionalists, we insist that judges interpret the law as written, not as woke ideologues would like it to be. As adults, we cannot allow a failed social experiment to continue harming children who need both a mother and a father. 

Obergefell is a moral, constitutional, and familial tragedy. The Supreme Court must reverse it without delay.

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