The wrong case with the wrong victim

I’m one of several public defenders of natural marriage, but unlike many conservatives, I’m not upset that the Supreme Court declined to take up Kim Davis’s case this week. The court didn’t reaffirm Obergefell on Monday, it simply refused to reconsider it with this case. And that was the right call.

When the Supreme Court denies a petition for a writ of certiorari, it isn’t weighing in on the merits of the issue. It doesn’t mean the court agrees with the lower court. It just means that fewer than four justices believed the case warranted review or was the right vehicle for reconsidering the precedent. Taking up the wrong case at the wrong time can make a bad ruling harder to undo.

And Kim Davis’s case was the wrong one.

I want Davis repaid for the hundreds of thousands of dollars she owes to the vindictive men who sued her for their supposed “profound emotional pain.” I want her vindicated, not demonized, for standing by her conscience. But for two reasons, hers was never the case that could overturn Obergefell.

First, Davis was the wrong victim. At Them Before Us, we often say: the victim determines the policy. Davis suffered for her convictions, and while she was individually victimized, she’s not the party most harmed by Obergefell. The true victims are the children who’ve been deprived of their mother or father because the court’s decision forced states to treat same-sex and opposite-sex marriages identically, even when that means separating children from one of their biological parents.

The court’s error in Obergefell wasn’t merely that it redefined marriage. It redefined parenthood. Once husbands and wives became optional in marriage, mothers and fathers became optional in family law. States began to overhaul parenthood so two men or two women could intentionally separate a child from their mother, father, or both. Adult equality for the bargain basement price of child inequality.

Second, Davis’s case asked the wrong question.

When the court finally revisits Obergefell, the question should not be whether Christian adults are required to arrange certain flowers, bake certain cakes, or sign certain documents. The question must be whether children need their own mother and father. Do they flourish best when raised by the two people responsible for their existence? Or does a contractually arranged, state-assigned set of adults provide the same identity, stability, and safety to our smallest citizens? After a decade of undoing children’s rights to be known and loved by the two people responsible for their existence, that’s the question that Obergefell has generated.

When courts face the wrong victim and the wrong question, they can entrench injustice for decades, making future justices reluctant to revisit a precedent without a major doctrinal, factual, or moral shift. Plessy v. Ferguson (1896) did exactly that. By centering an adult’s abstract claim to sit in a railcar rather than confronting the broader human cost of segregation, the court upheld “separate but equal” and codified racial injustice for nearly sixty years. Only when Brown v. Board of Education reframed the question around the developmental and moral injury to children did the court finally have the framing to overturn Plessy.

The same pattern played out after Roe v. Wade. In Planned Parenthood v. Casey (1992), the court faced the wrong victim and the wrong question. The plaintiffs were abortion providers claiming that Pennsylvania’s modest regulations placed an “undue burden” on women. Instead of reexamining whether abortion was ever a constitutional right, the justices reaffirmed Roe’s “essential holding” under a new test, entrenching it for another 30 years.

Contrast that with Dobbs v. Jackson Women’s Health Organization (2022), which finally asked the right question on behalf of the right victims. Dobbs didn’t quibble over regulations or burdens, it asked whether the Constitution ever contained a right to abortion at all. And the victims weren’t abortion providers or inconvenienced adults, but the unborn children whose lives the state sought to protect, and the women harmed by a culture that told them freedom required violence against their own offspring.

The court’s refusal to hear Davis’s petition isn’t a defeat, it’s an opportunity. It leaves the door open for the right case: one brought by the right plaintiffs, asking the right questions, on behalf of the right victims.

The next time the Supreme Court faces Obergefell, it shouldn’t have the appearance of protecting the self-interest of Christian adults. It should be driven by the urgent need to protect children who lost their mothers and fathers because of a decision that was both morally wrong and constitutionally unsound.

That’s the case a new coalition is preparing. We intend to challenge Obergefell not on the grounds of adult discomfort but on the grounds of child injustice. The story of Kim Davis highlights individual courage, but the story that will overturn Obergefell must highlight widespread harm. The measurable, irrefutable harm inflicted on children when the law denies their primal right to both parents.

When the court finally reconsiders Obergefell, it must do so for the sake of those children. And when it does, the verdict will not just correct a legal error, it will restore moral sanity.

Until then, I’m glad the Supreme Court waited. Justice delayed is better than injustice reaffirmed.