Another shot at Obergefell

In his dissent in the infamous Obergefell decision that legalized same-sex marriage nationwide, Chief Justice Roberts noted that the decision “creates serious questions about religious liberty.” And unlike the imagined right invented by the Obergefell majority, the freedom to exercise of religion is “actually spelled out in the Constitution.” Moreover, religious liberty, the chief justice argued, is not merely about the ability to teach religious principles, but instead involves “freedom of action in matters of religion generally.” Echoing this sentiment, Justice Thomas in his dissent highlighted the “potentially ruinous consequences for religious liberty” represented by the judicial usurpation of the democratic process. Justice Alito argued that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

Ten years later, our nation continues to feel the reverberations of the act of judicial will.

Thankfully, the challenges to Obergefell have not yet been exhausted. Remember Kim Davis, the county clerk from Kentucky who became famous in 2015 for refusing to issue a marriage license to two gay men despite the Obergefell ruling. Because of her refusal, Davis spent six days in jail and was eventually held liable for hundreds of thousands of dollars in emotional damages and legal fees. Davis recently appealed the verdict against her, arguing that the First Amendment protects her from personal liability for her refusal to issue the license.

The legal contortions involved in the case against Davis are substantial. On the one hand, lower courts have ruled that Davis “cannot raise the First Amendment as a defense because she is being held liable for state action, which the First Amendment does not protect.” On the other hand, the lawsuit proceeded against her as an individual and private citizen, who lacks the “qualified immunity” that state actors typically have to insulate them from personal lawsuits. In other words, Kim Davis is a state actor when the Intoleristas require her to be, and she is a private individual when they require her to be. The common thread is that she is a punching bag, and they must make an example of her, in order to teach the rest of us what happens to those who refuse to bend the knee to the rainbow flag.

And while Davis could have limited her appeal to her situation, asking the court to resolve her personal status and remove the judgment against her, she chose instead to challenge the “legal fiction” at the heart of Obergefell itself. For Christians who are praying for the end of Obergefell, this is no small matter. For while the rest of us may lament the decision as we witness the legal destruction, social chaos, and sexual anarchy that it has wrought, we lack the proper legal standing to bring a suit that could overturn Obergefell. Davis, however, is one of the few Americans with legal standing to bring a challenge against the precedent. For that reason, Christians ought to pray that the Supreme Court takes up her case and revisits the fundamental error at its heart.

Because remember: Obergefell isn’t merely a threat to religious liberty. It’s a threat to the family, to children, and to society. It set in motion a fundamental redefinition of every aspect of family law, from paternity and custody to birth certificates and motherhood. Subsequent Supreme Court cases, such as Pavan v. Smith, have carried forward the judicial tyranny of Obergefell, essentially ruling that categories such as male and female and mother and father are unconstitutional in the realm of state statutes involving parentage. As the Hale Institute’s Jeff Shafer has argued, Obergefell (along with its legal cousins) has fundamentally reclassified what parents and children are. Parents are no longer “naturally vested authorities,” but simply “provisionally accredited custodians.” Children are no longer persons naturally related to their mother and father, but instead a legal assemblage of biological parts “available for negotiated transfer of reproductive-technology customers.”

In other words, if you wonder how it is possible that someone can have two women listed on their original birth certificate, with one of the women occupying the place of “father,” look no further than Obergefell.

If you wonder why Supreme Court Justices are unable to answer simple questions such as “What is a woman?” look no further than Obergefell.

If you wonder why convicted pedophiles are able to purchase children through an unregulated surrogacy market, look no further than Obergefell.

Acts of judicial tyranny must be maintained by further acts of judicial tyranny. Laws and policies must be reconfigured around the fundamental lie at the heart of Obergefell.

And because courts have ordered a simple county clerk to pay two sodomites hundreds of thousands of dollars in emotional damages because she acted in accordance with her Christian beliefs, there is a chance that Obergefell might be overturned.

May it be so.

Obergefell delenda est.