Jeff Shafer has done a masterful job of dissecting the majority opinion in Obergefell; a job more masterful, I dare say, than that of the dissenters, whose critiques were already devastating. Or rather, Shafer has put on display the complete vacuity of its argument, in which there is nothing of legal substance to dissect but much of practical consequence to fear. He is absolutely right to contend that, if the foundations of law are to be preserved, Obergefell must be overturned. Meanwhile, he thinks it should be applied in the most minimal fashion possible, requiring no more than the issuance of civil marriage licences to same-sex partners who demand them – licences shorn, latae sententiae, of their procreative ass and corresponding benefits. Obergefell, like Kryptonite, is best encased in lead, so to say, until properly disposed of. It must not be permitted to dissolve the delicate nexus of family law, of which it seems to comprehend almost nothing.

Professor Stoner thinks the high court’s recent turn to originalism, combined with popular reactions to the social chaos progressivism has produced, make reversal of Obergefell a reasonable hope. He is not confident, however, that it will come quickly or that marriage law can be isolated effectively from marriage licences. Perhaps the damaging effects of Obergefell’s radiation must be felt until the people themselves are thoroughly sick of it? Yet Stoner is hopeful that a discourse based on children’s rights, and on parental rights and responsibilities, will eventually prevail and that the D.I.E. regimes by which our culture is currently being mortified will collapse. The process may be painful, but we must sooner or later reverse, not only Obergefell, but the general decline from an objective, nature-based footing for law into the subjective, feelings-based morass in which we currently find ourselves.  

No disagreement there. Certain difficulties come to mind, however. One is the vitiation of rights discourse as such, which – absent acknowledgment that the goods it seeks are grounded in God and in the created order – threatens to become nothing but a power game. Who’s to say that a child deserves a father and a mother, and wherever possible its own father and mother? It’s just as easy to say that the child deserves the kind of absolute autonomy that liberates from the oppressive paradigm of the traditional family, a paradigm reinforced by equally oppressive  religion, from which the state should defend the child.

So also with the law itself. Insofar as positive law is grounded in natural and divine law, which lends it its objectivity, it is capable of serving civil society as a stabilizing force. Insofar as it floats free from natural and divine law, or badly misconstrues them, it is incapable. It will surely gravitate to the subjective pole and, just so, tend to tyranny. We may hope for the repudiation of Obergefell as its corrosive effects become clear. But it is equally possible that those effects will render repudiation unlikely. For same-sex marriage makes marriage a creature of the state and every citizen a ward of the state, as I argued in Nation of Bastards. Wards of the state will be tutored and “educated” according to the state’s good pleasure.  If and when they rebel, their rebellion may well be destructive rather than constructive, for they will no longer grasp the moral and political principles of which they were deprived.

Moreover, the overturning of Obergefell, like the overturning of Roe, will not solve the basic problem. For the reinvention of marriage as a gender-blind institution, to which procreation is merely incidental, is not the root but rather the flower of our collective turn to subjectivity in sex. The detaching of parental intent from human biology, and the prioritizing of the subjective over the objective, did not begin with the embrace of abortion, much less with the invention of same-sex marriage. It was present already in our collective embrace of contraception in the fifties and sixties. Our current course, as I contended in “The Measure of the Beast,” was determined at that time.

Suppose we do reject same-sex marriage and the Gender Mainstreaming agenda to which it belongs. Suppose we recover the once-universal conviction that man is male and female, and that any society with a future must respect that fact both by custom and by law. Suppose we repent of abortion, and not merely of Roe v. Wade. Suppose we begin reproducing again. All good, all necessary, if we hope to survive! But as long as the contraceptive mentality prevails, all quite inconsistent and unsustainable. For what is that mentality, if not the deification of desire and a corresponding willingness to contradict the body itself, that it may better serve desire? Where can it lead, juridically, if not (per Shafer’s tenth and final point) to a doctrine of “intent” in which subjectivity overpowers objectivity? Where can it take us, politically, if not to the “state totalism” about which he worries in his introduction?

Twenty years ago, speaking before a large crowd on Parliament Hill that had gathered in opposition to C-38, the federal bill that with the Supreme Court’s blessing brought same-sex marriage to Canada, I proclaimed the obvious and the inevitable:

In order to accommodate same-sex unions within marriage, it is necessary to remove the gender stipulation. And with the gender stipulation goes procreation. And with procreation goes the connection of marriage to children and to the welfare of children… Marriage is the only public institution we have that embodies the rights of children to their parents and of parents to their children. It is the only institution we have that is devoted to the family as the primary means of caring for children. It is the only institution we have that declares that a child deserves a father and a mother… When the definition of marriage is changed, the biological facts do not change. Men and women make babies, not men and men or women and women. In this respect the equality supposedly achieved by C-38 is achieved only on paper. In order to make homosexual unions more nearly equivalent to heterosexual unions, it is necessary either to find a way for the former to produce babies by technological means, or to deprive the latter of any special relationship to their babies. It is necessary, in other words, for the state to take control over human reproduction. And in taking control over human reproduction the state exercises a tyrannical power. Have you read the fine print in C-38? This bill not only presumes to take power over marriage… [It] also presumes to replace in Canadian law the words “natural parent” and “natural parent-child relationship” with the words “legal parent” and “legal parent-child relationship.” In short, it turns our most fundamental human connections into mere legal constructs. It turns every man, woman and child into a chattel of the state. 

In both countries the dominoes have begun to fall. It must be said of Obergefell, as of C-38, that it evacuates marriage law both of its coherence and of its raison d’être; and that, in doing so, it eviscerates the legal protection of parents and children alike, subjecting the family (and private interests generally) to predatory incursions by the state or by those who manipulate the state. But it must also be said that it fundamentally alters the relationship of the family, and of the person qua person, to the state. The family, which is the very school of personhood, is reimagined as if it were a project of the state. The pre-political nature of the family, and the uniqueness of persons in families, is ignored or denied. As Shafer observes in a forthcoming companion piece, “Obergefell at 10,” families become reconfigurable and persons become substitutable. “After the exit of the natural family and the normative status of its embodied identities and callings, the relational remainder can be accounted for only in terms of choice or power.” 

This logic of substitutability extends to tribes and peoples, and to the cultures and customs belonging to them; witness the artificially induced and deliberately mismanaged immigration crisis now appearing in Europe, North America, and throughout the West. That is something not so readily reversed as a legal ruling! In any case, the judiciary tends to favour it, even to promote it in the most fantastic ways, as if there were some hidden method in the madness. But I digress. Shafer has shown that Obergefell, which can be reversed, must be reversed. What I wish to add is that it will not really be reversed unless and until it is made clear that any branch of the state that attempts to change marriage is acting ultra vires. The state, not being the author of that institution, does not have the requisite authority over it. 

I do not mean that the state cannot articulate in positive law what marriage actually is, but that it cannot make marriage whatever it wishes it to be. Marriage, we might say, has borders proper to itself. Obergefell refused to recognize those borders. Justice Kennedy, like his Canadian counterparts, deployed a neat little trick to erase them. In his opinion he shifts back and forth, without notice or justification, between marriage as an individual right and marriage as the right of a couple. But marriage, viewed as a right, is not the right of a couple, though a marriage licence is sought conjointly. It is the right of every individual “to marry and found a family” (UDHR 16), if he or she is willing and able to do so. Being able includes finding a partner equally willing and able, but that does not convert the individual right into a group right. Group rights, as family rights, come into play after marriage not before it. 

Now, a court or legislature cannot bestow this right, for it already exists, and it cannot extend it to some new party, because it exists universally. It can only defend it, when one party tries to deprive another of its rightful exercise. In order to extend or “expand” the institution of marriage, a court must first restrict it, pretending that it is the right of a couple or group, while observing that some couples or groups seem to lack it. They do indeed lack it, but no individual lacks it. I can marry, as my mother married, though I cannot marry my mother. I can marry, as my male friend has married, though I cannot marry my male friend. (I cannot even marry his wife, if she really is his wife.) The right to marry is neither affirmed nor extended by saying that I can. Rather the institution is altered to accommodate my perverse or undisciplined desires. It is made over into something other than what it actually is: a union procreative in principle, though not always in practice, concerned at bottom with the faithful fostering of a new generation. 

But perhaps the manoeuvre to which I refer was more a trap than a trick, a trap the court fell into by approaching marriage through the lens of the licensing process; that is, through the regulatory considerations in which a court rightly takes interest? After all, when conforming to the bureaucratic requirements of the state, two individuals do make common application for a licence. But a licence is not necessary for a marital union. It is necessary only for transparent procedures in lending support to the kind of union that marriage is. And the court made clear that it regarded marriage as something other than the kind of union just described. That something is not clearly specified, and cannot be, for it is decidedly subjective rather than objective. The only objective thing that remains in view is the licence itself; hence Shafer’s proposal that official support for marriage, together with family law, be detached from the licence for the time being.   

I do not mean to leave out of account Obergefell’s argument from and about dignity. That being a subject far too large to treat here, I will say only that the incoherent legal fiction according to which I can “marry” even while not marrying in no way defends my dignity as a rights-bearing person. For at no point did I lose the right to marry, as if I were a slave rather than a free man. On the contrary, I could marry but chose not to marry. I chose to do something else instead, while refusing to admit that it was something else. All the court has done for my dignity is endorse that refusal. Which offends against the truth — not to mention the constitutional amendment to which Obergefell perversely appeals as the source of its fiction — and therefore undermines both my good and the common good.

If, for reasons of law such as Shafer supplies, we deem Obergefell a deeply flawed judgment requiring to be overturned for the good of society and of the whole body of marriage law – for the sake of the very rule of law – we make no mistake. If, for reasons of logic, we reach the same conclusion, we are not wrong. But if we speak to all of that, we have not then said everything that requires to be said. We must say also that human dignity, insofar as it is inherent rather than merited, has no other source than God; that universal rights are gifts of God, not of the state; that marriage, on which no one’s inherent dignity depends, has no other author than God; that attempts to manipulate marriage to enhance one’s feeling of dignity are doomed to fail; and that the state is obligated before God to acknowledge these things.  

That being the case, I do not think it quite right to say either that Obergefell should be contained until it can be overturned or that it must be left to run its course until people can stand its effects no longer and are ready to return from the far country to the Father’s house. Obergefell must be rejected even before it has been reversed. For though it has the form of law, it is not licit law, because no court of law has a valid mandate to rule over marriage or the power to alter it in substance, even if it has the power to adjust, for better or worse, the public regulation of its accidents.

Such, then, is my own proposal. Call it radical, if you please, so long as by “radical” you mean going to the root of the matter. Obergefell is not merely bad law but no binding law. It is a ruling that cannot compel the conscience and cannot serve to govern the country. Let those jurisdictions where the requisite clarity of mind and firmness of purpose prevail regard it, even now, as null and void. And do not say that this is constitutionally impossible or that it would generate a constitutional crisis. The country already has a constitutional crisis, for its highest court has set itself above God.

Douglas Farrow is Professor of Theology and Ethics at McGill University in Montreal and an essayist at douglasfarrow.substack.com. See further the chapter entitled Same-Sex Marriage and the Sublation of Civil Society, in his book Desiring a Better Country (McGill-Queen’s 2015).