Exclusive: Inside The Growing Movement To Reverse Obergefell

In the ten years since the Supreme Court invented the “right” to same-sex marriage in its Obergefell v. Hodges, many of the family, social, constitutional, and religious fears that were dismissed at the time as delusions have come true.

The decision has left in tatters the single most important institution in society — marriage and family — while ushering in an LGBT indoctrination agenda, annual state-enforced homosexuality, a boost to the rent-a-womb industry, and a burgeoning acceptance of eugenics to service the rent-a-womb industry.

Gay “marriage” — which was sold to Americans as “we just want to mind our own business” and the ostensibly “harmless” personal choices of others — has been a destructive force in society in innumerable ways. Many Americans are starting to notice it, with support among Republicans dropping 14 percent from 2021 (the high point) to its “lowest point since 2016.”

“The last 10 years have made it clear. We can either recognize gay marriage or recognize children’s right to their mother or father. We can’t have both,” Katy Faust, founder and president of Them Before Us, a group advocating the right of children to their biological parents, told The Federalist. “Marriage has, throughout our country and nearly every other culture throughout history, been the pathway to secure that right. But as every one of the 38 countries which have legalized gay marriage has learned, when you make husbands and wives optional in marriage, you make mothers and fathers optional in parenthood.”

“The problem is, from the child’s perspective, their own mother and father are never optional. Not in terms of their identity, their development, their safety, or their rights,” she said.

Faust is going to be part of a panel explicitly calling for the overturn of Obergefell at National Conservatism’s fifth annual conference (NatCon 5) in September, The Federalist learned. She will be joined by Claremont Institute senior fellow and constitutional lawyer Dr. John Eastman and Hale Institute Director Jeffrey Shafer.

The panel is even more topical as petitioner Kim Davis — the former Rowan County, Kentucky, clerk most well known for refusing to issue a marriage license to a same-sex couple in the aftermath of Obergefell — has recently asked the Supreme Court to hear a case that has the potential to overturn Obergefell.

However, even if the high court decides not to take that case, much like abortion, the issue is one that will need to be won over time.

As Justice Clarence Thomas signposted in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the case should have opened the opportunity to get rid of Obergefell (and all other substantive due process jurisprudence), but the court has yet to pursue it.

Thomas noted that, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [right of married persons to obtain contraceptives], Lawrence [right to engage in private, consensual sex acts], and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ … we have a duty to ‘correct the error’ established in those precedents.”

Obergefell essentially outlawed states from being able to only recognize traditional marriages, destroying what had been a “mainstay of western civilization for thousands of years,” Eastman told The Federalist.

While the “outcome-driven” case serves as a “devaluation of the institution of marriage and the foundational role it plays in civil society” and has brought children “into ‘marriages’ that necessarily include at least one and oftentimes two non-biological parents,” Eastman said, he also pointed to how Obergefell has damaged American law.

“There is no question that the ability to ‘marry’ someone of the same sex was never any part of the history and traditions of this, or any other, country. Normally, when articulating new unenumerated rights, the Court looks to whether the asserted right was part of the history and traditions of this country,” he stated “It did not do so in Obergefell (or did so only by assessing the asserted right at such a high level of generality as to make the inquiry meaningless), opening the door to other novel claims, such as a ‘right’ to polygamous marriages, to polyamory, even bestiality — claims which followed on the court’s decision in fairly short order.”

Polyamory has grown in prominence to the point where some localities have recognized domestic partnership rights of such groups of people. And it is not as if polyamory or polygamy were unforeseen consequences of the case. Justice Samuel Alito drew the distinction all the way back when Obergefell was being argued before the court, and Chief Justice John Roberts pointed to the issue in his dissent in the case.

Justice Anthony Kennedy, who wrote the majority opinion in Obergefell, seemed to completely brush off those concerns as absurd, while hiding his reasoning behind explaining the benefits of marriage generally, as opposed to the dangerous social experiment he was forcing on the United States.

“Justice Kennedy’s explicit acknowledgement in the opinion that the traditional view of marriage ‘has been held – and continues to be held – in good faith by reasonable and sincere people,’ and that ‘religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,’ has, unsurprisingly, not been adhered to,” Eastman said. “Kim Davis’s case is the poster-child example, for in adhering to and advocating for her sincerely-held religious view, she was hounded out of office, prosecuted, and financially ruined. Her First Amendment rights of speech and the free exercise of religion have been trampled beneath the foot of the LGBTQ+ agenda.”

As Federalist contributor Glenn Stanton wrote in these pages, “the push for ‘gay marriage’ was never just about marriage. It was always about de-sexing the family and society. … No one should miss the fact that there was no daylight whatsoever between the nationalization of gay marriage and the launch of the ‘trans’ revolution.”

The tentacles of Obergefell have found themselves in media, in schools, and in curricula deliberately designed to build some kind of fake celebration of gay unions as something equal to, if not essentially better than, all other structures. Another recent Supreme Court case, for example, showcased how homosexual propaganda superseded the rights of parents to keep that kind of material from their children. The high court ultimately recognized the right of parents to opt their children out of the material (something far short of getting rid of it altogether).

Children have been harmed by Obergefell in other ways, too.

As Faust pointed out, “In the post-Obergefell world, it’s not just marriage that has been redefined. It’s parenthood, infertility, and natural familial relationships. Children are now regarded as objects to be awarded to whichever adult has the money and means to assemble them.”

“But children are not commodities. They are humans. With fundamental natural rights. The first of which is their right to life. But a close second is their right to be known and loved by both mother and father,” she added.

There was some outcry when gay political figures like former Transportation Secretary Pete Buttigieg, libertarian (faux-conservative) podcaster Dave Rubin, and other high-profile gays started buying children. Nonetheless, the industry promoting surrogate wombs and in vitro fertilization (IVF) to purchase children and subsequently deny those children the benefits of having a mother and a father has boomed in recent years.

The IVF and eugenics industry essentially accommodates same-sex “marriage” and radical gender ideology. Meanwhile, the family structure has been undermined as our society is force-fed the lie that two males or two females can offer the same kind of upbringing as a mother and father. As a result, the lines between male and female have been blurred, “transgenderism” is running rampant, and a new generation is being warped to believe that reality is simply a “construct” that can or should be broken.

“The manifestly warrantless Obergefell ruling accomplished a diminishing of the eminent tribunal that produced it, a blow to the rule of law, and an injury to the nation it addressed,” Shafer told The Federalist. “The Court’s ruling introduced upheaval not just into the field of family law but into the community itself by insulting the normative and orienting institution of the natural family upon which that community depends for its integrity.”

The NatCon 5 panel is set to take place on Sept. 3 at 7:30 p.m. in Washington, D.C.

Breccan F. Thies is a correspondent for The Federalist. He previously covered education and culture issues for the Washington Examiner and Breitbart News. He holds a degree from the University of Virginia and is a 2022 Claremont Institute Publius Fellow. You can follow him on X: @BreccanFThies.