I am grateful to Peter Leithart for organizing this exchange, and to Messrs. Stoner, Farrow, Young, and Kennedy for their kind participation and stimulating responses to my opening essay. Of this group of friends, Mr. Young distinguished himself in wondering whether Obergefell is quite worth the fuss the rest of us have raised about it. (Or as he put it in his pointed refrain: “Obergefell—so what?”) I select that important question as the point of my reentry into the conversation.
Elsewhere I have proposed that the juridical recognition of marriage between husband and wife constitutes a legal archetype—a standard of law that orients and defines an entire area of law. Though in the case of marriage-as-archetype, it sustains not just the wide expanse of family law but law tout court. (Therefore does Professor Farrow emphasize that the very rule of law is implicated in Obergefell’s audacity.) As such, the rescinding of the definition and authority of matrimony as a legal polestar implies a systemic upheaval inviting—and in principle requiring—radical alteration to the state’s vision of human meaning and society.
For after the law renounces the created norm of the marital natural family, it is untenable for the law to sustain through time the public place and meaning of all of that family’s aspects and relationships. The law’s act of redefining the whole of marriage into a de-sexed contradiction of itself is at the same time a dis-embedding and reconstituting of the parts formerly contained within that natural whole—the whole from whose meaning the parts had derived their own. Specifically, the relationally defined aspects of familial human being (spouse, mother, father, male, female, sex, body, child, sibling, person) cannot remain in law what they had been before their explanatory context was inverted.
For instance, after the law installs the fantastical notion of “same-sex marriage,” not only is “mother” exiled from the matrimonial (“mother-making”) family in which its meaning had been ontologically situated. Removed from relational habitus, “mother,” now isolated, itself readily disintegrates. Hence “mother” now can be any of a series of stand-alone, functional services: ova donor, gestator, custodian. At least three different women may contribute to the making and rearing of one child, while the law looks on approvingly. Michael Hanby has observed that on this bewildering innovation, the once natural question—“who is my mother?”—has neither an obvious natural answer, nor even a legal one.
Polar change in law redirects the social order by removing from legitimate public circulation the premises that previously carried, defined, and ordered the community. Upending institutional norms in society deprives its members of the sources of instruction through which much of its prior understanding originated: tacit acquisition drawn from experience and environment—conditions the law cultivates. This is why the Western legal tradition treated law as an indispensable contributor to a virtuous populace. And it is why Professor Farrow, looking to the future, wonders (if only to make an essential point on law’s profound influence on the public mind) whether a revolt from the gay legal frame by persons long having suffered under it, and who perhaps have internalized much of the statist tutelage attending that post-marriage regime, may have lost grasp of the truths needed for their revolt to be constructive. “[T]hey will no longer grasp the moral and political principles of which they were deprived.”
Simon Kennedy thus suitably initiates his essay with attention to the dystopia implied and accomplished by the juridical mangling of the family. The obvious peril invited by state deconstruction of the family explains its frequent appearance as a feature and theme of dystopian literature. Kennedy sees that the Supreme Court’s role in forcing the sexual revolution upon the nation’s laws has not been one of innocent mistakes of constitutional interpretation but as willful defiance of the order of creation. As he describes, the Court majority feigned to “redefine[] something that is fundamentally unchangeable,” disrupting an area of law that emerges from “an impassible social order.” And as “the order of the household and the order of the commonwealth” are closely connected, “Obergefell is the midwife of political chaos.”
Professor Farrow specifies one part of the political chaos consequent to the law’s faux-marriage endeavor that evacuates family law of its coherence and purpose: “it eviscerates the legal protection of parents and children alike.” Quite so. I have proposed in another venue that once the law has overthrown the natural family and its authority-bearing and embodied offices and callings, it reclassifies both parents and children. Parents, rather than naturally vested authorities, are but provisionally accredited custodians. Children, correspondingly, are deemed relationally blank isolates justly available for negotiated transfer to reproductive-technology customers or others revealing intent to possess them. Judicial and legislative resolutions across the nation have facilitated these abuses in the name of fairness and equality for sexual minorities, following the lead of the Supreme Court which has described the exclusive husband-wife marriage definition as an instance of animus and injustice.
In a recent enactment of this sort, the state of Massachusetts removed from its family law statutes the words mother, father, he, she, his, her. These words—and the meanings they hold in public view—have become both irrelevant and a conceptual impediment to the replacement model of androgynous humanity that guides the post-matrimony state. Helping to make the point clear, a judge in Professor Farrow’s country has imprisoned a father for publicly describing his trans-identifying daughter as a female rather than a male. Here again, the meaningless human body entails that father, daughter, he, she are likewise meaningless and without authority. Such formerly anchoring words are newly open to scrambling and mandating by a now-total state that in principle may redefine and command every relation.
It bears repeating: Once the relations of family that symbolically represent truth, freedom, authority, and divine purpose are denied and scandalized by state redefinitions, the remainder of the society is similarly without resource to defend its prerogatives against the state that denies any authority transcending or external to itself. If marriage is a contingent policy stipulation rather than a reality of creation that defines us in vital ways, and if one’s sex is legally inconsequential, then mother and father are likewise nominal categories, not real ones. The working out in policy of these new principles and related others is what lies ahead, and where the battle will be taken up.
Therefore, pace Mr. Young, there is in fact nothing valid to the retort that if we dislike same-sex marriage we may avoid it simply by choosing not to same-sex marry. Indeed, it is the enlightenment individualism that Young rightly decries that insists we view Obergefell as but a benign addition of one more choice to the menu of our individual options (thus one that we may either take up or decline) rather than to see it for what it actually is: an epitome instance of public defiance against God and the community of man in His image, the collective fallout from which we, and unborn generations, do not get to choose but endure nonetheless.
Of course, the loss via Obergefell of the family-containing marital circumference, which decisively accelerates the cultural weakening and redefinition of the constituent relations and meanings internal to marriage, did not initiate their troubles nor is itself unaffected by them. The option to invert marriage in law was implied in decades of assaults on the interior components of it. Professor Farrow offers that Obergefell “is not the root but rather the flower of our collective turn to subjectivity in sex,” and points to the civilizational earthquake of our collective embrace of contraception technologies—an epochal disruption that was unleashed in this country by the Supreme Court invalidating state laws against them. And among other of law’s inversions (including the Court’s reclassifying sodomy from a crime to an admirable constitutional liberty), of particular significance is the legal facilitation of reproductive technologies that make nuptiality irrelevant to reproduction. The visible, widespread use of such technologies by same-sex partners (whose use highlights the non-relational meaning and commercial availability of children) seems the stroke sealing the plausibility of the law’s same-sexing of marriage.
Is there cause to be hopeful of a turnaround? James Stoner’s guarded optimism about a collective return to sense and the traditional acknowledgment of family is grounded in the manifest truths of the created order, and the inescapable display of harms from its defiance. He observes that after ten years, Obergefell (in contrast to the ten-year condition of the landmark Brown v. Board of Education) might be losing its luster and standing. Stoner points to the current backlash against the transgenderism crusade. Though not yet uniformly or clearly articulated by the trans-skeptical public, there do seem to be hints of its awareness that the damaging and tyrannical transgender policies are manifestations of Obergefell’s achievement, and conceptually authorized by it.
We surely can be little surprised that transgender ideology was unleashed and ran fully authorized across the post-Obergefell landscape. As the Supreme Court had banished male and female from legal relevance in their most profound and defining institutional place, trans advocates reasonably understood the implied public authorization for their own project. Conversely, the substantial disfavor against the transgender proposal that is now exhibited by a public weary of having its credulity strained and its sensibilities mocked may indeed suggest that Obergefell’s clout is waning.
Further, Stoner is no doubt correct to suspect that as the testimonies of grief proliferate from children who have suffered from their involuntary service as the made-motherless or -fatherless accoutrements of same-sex couples, the community may look askance at Obergefell’s claim to authority. After all, the Obergefell opinion and particularly its case law and policy sequelae have been constructed to ensure the law cannot see any harm in the circumstance of children treated as currency for exchange or as tokens of state beneficence. When the bereft child’s angst and longing for mother or father are incomprehensible under the terms of the new legal standards, the polity has reason and occasion to revisit whether it should accept as law what is so radically contrary to moral intuition.
As a result, Stoner sees a way forward in “a program for the step-by-step recovery of legal recognition of the natural relation of progenitors to one another and to their progeny.” Reassembling what government and other cultural citadels have disassembled not only means a repair to the family law that addresses indelible parts of the whole of matrimony, but in the process highlights the persisting truth and defining importance of the relation that the Supreme Court in Obergefell affected not to see.
Jeff Shafer is Director of the Hale Institute. He graduated with honors from the Regent University School of Law in 1995. Early in his legal career, he operated a general practice firm in Cincinnati with a particular emphasis on criminal defense litigation. Thereafter, he practiced in a law partnership, focusing on elections law and civil constitutional cases. From 2005 to 2020, he served as Senior Counsel with Alliance Defending Freedom at its Washington, D.C., and Scottsdale, Arizona offices. Mr. Shafer has litigated public interest cases in federal and state trial and appellate courts throughout the United States, as well as developing academic and advocacy initiatives on matters of policy concern. Outside of the courtroom, he has addressed a wide array of audiences in academic and community venues, in the US and abroad, on matters of legal and cultural interest.
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