In May 1954, the Supreme Court decided unanimously in Brown v. Board of Education that separate public schools for children of different races were “inherently unequal” and thus violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court did not adopt the rationale of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson fifty-eight years before that would have forbidden segregation laws on the grounds that “the Constitution is color-blind and neither knows nor tolerates classes among citizens.” Instead, citing several sociological studies, Chief Justice Earl Warren argued that state-imposed segregation causes a “feeling of inferiority” that inhibits the capacity to learn, hence denying equal education in fact.  Within a few years, by per curiam opinions, the Court struck down segregation laws concerning public parks and public transportation, citing Brown without explaining how the reasoning tailored to the context of education extended to these distinct if related issues.

Court-ordered school desegregation occasioned “massive resistance” and then numerous more subtle obstacles, remaining a matter of controversy and a topic for litigation into the twenty-first century. But ten years after Brown, racial discrimination was emphatically repudiated in the historic Civil Rights Act of 1964, passed by Congress to forbid the practice in any matter touching interstate commerce or by any entity receiving federal funds. To be sure, disputes about whether race can be used as a criterion to confer benefits—“affirmative action”—remained an issue, with the Court developing a complex jurisprudence that sometimes permitted it, sometimes forbad it, until explicitly adopting Justice Harlan’s “color-blind” standard two years ago in Students for Fair Admissions v. Harvard. Even this seems hardly to have settled the matter, as current controversies over DEI (“Diversity, Equity, and Inclusion”) makes plain.

In June 2015, the Supreme Court decided in Obergefell v. Hodges that state laws defining marriage as between a man and a woman infringed on the dignity of same-sex couples and thus violated the same Equal Protection Clause. Admirers of the decision compare it to Brown as a landmark in the advance of equality and the destruction of prejudice, and as with Brown, the Court soon after extended Obergefell’s reach in a brief per curiam opinion, holding in Pavan v. Smith that the state of Arkansas was required as a consequence of the earlier case to list the same-sex spouse of a birth-mother as the other parent on a birth certificate. Jeff Shafer is surely right that this extension of the logic of Obergefell requires argument and cannot be taken for granted, a point noted as well by the three dissenters in Pavan. The former case involved the rights of two individuals of the same sex to a civil marriage, the latter the state’s record of an individual’s provenance, and it is hardly clear how the rights of the former are implicated in the state’s interest in the latter, unless the assertion of a claim of “dignitary harm” is so powerful as to suppress all contrary rights and interests.

Same-sex marriage was the subject of much discussion and legislation before Obergefell, but despite the close vote (5-4), the decision met little resistance and was widely and almost immediately acquiesced in and implemented across the country.  Ten years later, same-sex marriage is entrenched in a corner of the culture, but its future seems anything but secure. For one thing, personnel on the Court has changed, and the jurisprudential basis of the decision has been undercut by the Court’s new commitment to constitutional originalism, most notably expressed in the Dobbs v. Jackson Women’s Health decision overturning Roe v. Wade, whatever the disclaimers of some justices about its effect on marriage law.  Moreover, the Equality Act, which would have amended the Civil Rights Act to include sexual orientation and gender identity as protected attributes in federal law, has thus far failed to pass Congress; instead, its advocates find themselves arguing against one another on the question of girls’ and women’s sports, which itself has precipitated an apparent backlash from the public at large against sexually progressive assertions. One wants to say that the very different standing of Brown and Obergefell at age ten reflects a sound capacity of the public mind to distinguish what is essential from what is accidental in human nature—just as one wants to say that the rise of the movement for transgender rights in the immediate aftermath of Obergefell works out the logic of the advocates of same-sex marriage, denying as they do the natural telos of sexuality, even if that logic works against their own intention.

Holmes’s adage that “the life of the law is not logic, but experience” is only half-true. Shafer is correct in pointing out the logical failings of those who blithely assume that the argument in favor of same-sex civil marriage in Obergefell answers all the many questions posed by family law, but it will take some time for experience to catch up by showing the real-life consequences of a world where the natural connections of parents and their progeny are replaced by state-enabled fictions. Shafer carefully illustrates that the privileges, immunities, duties, and responsibilities of parentage were embodied in law because derivative of procreation; implicit is a program for the step-by-step recovery of legal recognition of the natural relation of progenitors to one another and to their progeny.  My own suspicion is that the argument will eventually be won in the court of public opinion by focusing on the rights of children to know—and to receive caregiving from—their natural parents, the rights of birth-mothers to nurture those they bear, and even the rights of fathers to fulfill their duties to those they beget. That this might lead to the re-discovery of the wisdom of the old law, albeit through its re-articulation in the language of rights, is worth hoping for and working towards.

James R. Stoner is is Hermann Moyse, Jr., Professor and Director of the Eric Voegelin Institute in the Department of Political Science at LSU