Why Not Overturn Obergefell?

The fall of Roe v. Wade has demoralized the Left. After decades of forcing their policy preferences on Americans by judicial fiat, the pendulum is swinging the other way. The Left fears that its gains during the last 60 years of progressivism are in jeopardy, and they want to reform the entire political system, including a now supposedly “illegitimate” Supreme Court, to ensure that they are protected. These include not just the “right” to an abortion, but the right of gay people to marry each other, invented by the Court seven summers ago in Obergefell v. Hodges.

As the Supreme Court made clear in its courageous ruling in Dobbs v. Jackson Women’s Health Organization, a precedent is not fixed in the firmament because society takes it for granted. Either the Constitution means something, or it doesn’t. Either the people have a say in how their society is ordered, or they don’t. Why stop at Roe? Why not take up Clarence Thomas’ advice and start reviewing Obergefell and the whole array of “rights” that progressive courts have devised out of thin air using the 14th Amendment’s Due Process Clause? 

Obergefell, like Roe, was a particularly arbitrary, extreme, and unjust imposition on the people. Like Roe, it had no basis in the Constitution’s text or American custom. It was simply dreamed up by a group of unelected judges who decided the time had come for them to impose a radically new understanding of the most fundamental institution of human society. 

Like Roe, Obergefell took away from the people the power to decide the most basic moral questions and daily life in their communities. As Justice Scalia put it at the time, the Court was violating “a principle even more fundamental than no taxation without representation: no social transformation without representation.”

The seven years since Obergefell have proven that “marriage equality” is a chimeric novelty. The percentage of gay adults who are married to someone of the same sex has risen only slightly, from 8 percent to 10 percent. Over 50 percent of gays are single. What barriers are still preventing gays from signing up for marriage? They have the legal right to do so, and society not only no longer stigmatizes gay couplings but celebrates and affirms them at every turn. It would appear that gays just are not very interested in marriage. 

But healthy civilizations don’t treat marriage as just another option on the menu. For most people, even in today’s noncommittal climate, it is an essential milestone in life. The vanquished defenders of “traditional marriage” (a contrived term that signaled defeat the moment it arrived) argued that marriage is not about the desires of husband and wife, but the benefits to their children, honoring God, and preserving the species. By redefining marriage to include couplings that cannot, naturally, be burdened with the responsibilities of procreation that marriage is concerned with (and who disproportionately want nothing to do with marriage anyway), “marriage equality” necessarily destroyed whatever sanctity was left in marriage after decades of easy divorce.

Marriage is the moral foundation of society, and its place could not be disturbed without profound consequences. From exhibitionist Pride parades to “gender identity” lessons in kindergarten classrooms, the post-Obergefell America makes the world of 2015 look practically antediluvian. When Obergefell was decided, Justice Alito presciently predicted that the ruling would be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” Obergefell made the losers of the gay marriage “debate,” and by extension anyone who today dares to speak out against the LGBT agenda and its ever more audacious affronts to truth, common sense, and decency, into untouchables. 

Instead of assimilating gays into mainstream society, the opposite happened: mainstream society was subjugated to the proclivities of a sexual fringe, one that now openly and proudly targets children. These developments are not coincidental: they are the result of society’s rejection of marriage and its sacred purpose.

The death of Roe presents an opportunity to leave this morass behind us. It is a grave blow to the legal shamanism of “substantive due process” that the Left has used to engineer social change without the consent of the people or the authority of their Constitution. This pernicious doctrine, as Thomas explained in his concurring opinion in Dobbs, has allowed judges to substitute their personal tastes for the Constitution’s text by making the 14th Amendment into a repository of virtually unlimited, unenumerated “rights.” Under substantive due process, the Supreme Court in Obergefell said it was restoring a basic right long denied that had never been heard of, and with good reason, in most times and places throughout history. 

Repealing Obergefell is a logical next step to rolling back substantive due process and its baleful consequences. One could hardly say doing so would upset some deeply rooted tradition, nor, since relatively few gays avail themselves of this newfound “liberty,” would it cause seismic disruptions to society.

The emptiness of “substantive due process” was exposed once and for all in the extraordinarily banal, petulant dissent in Dobbs. Even by the low standards of the liberal justices, the opinion was an embarrassment. Given the chance to leave everything on the field in defense of the precious “right” to an abortion, Stephen Breyer, Elena Kagan, and Sonia Sotomayor put together a whiny, 60-page Instagram post that makes little effort even to argue that abortion is, in fact, a constitutional right. Instead, they argue that they, and millions of Americans who agree with them, strongly feel that it is, which is all that should concern us. Also, Roe is old, so the Supreme Court was obligated to leave it alone. 

Isn’t it funny how only the Right has to show restraint? The Left has been aggressively remaking American culture from the bench for decades. Why should the Right be modest now? Because the Left might say mean things? The Right must adopt an offensive posture if we hope to recover our Constitution, bring power back to the people, and rebuild a moral society where marriage and family mean something again. 

We cannot expect to reverse the damage of generations of leftist legislating from the bench by being modest. The boldness the Supreme Court showed in Dobbs, and which Clarence Thomas showed especially, should set an example. Any conservatism worthy of the name must do more than preserve yesterday’s defeats.

About Matthew Boose

Matthew Boose is a Mt. Vernon fellow of the Center for American Greatness and a staff writer and weekly columnist at the Conservative Institute. His writing has also appeared in the Daily Caller. Follow him on Twitter @matt_boose. ‏

Photo: Getty Images

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