Ten Years of Tyranny Is Enough: The Legal Fiction of Obergefell Must End

By Daniel Schmid

“When it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was ‘meant to endure through the long lapse of the ages,’ — we place a high value on having the matter ‘settled right.’ ... When one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.”

–– Dobbs v. Jackson Women’s Health Organization (2022)

The time has come for the Court to do just that — correct the mistake it made a decade ago and overturn the disastrous and unconstitutional decision that legalized same-sex “marriage.”

To quote from Dobbs, the Obergefell v. Hodges opinion of 2015 was “egregiously wrong,” “deeply damaging,” “far outside the bound of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,” and set out “on a collision course with the Constitution from the day it was decided.” Those same words were used by the Court in Dobbs to justify relegating the purported right to abortion under substantive due process to the dustbin of history. The Court should do it once more with its constitutionally ungrounded decision in Obergefell.

Ten years of constitutional tyranny is enough. Obergefell was a bad decision based on a legal fiction that needs to be corrected — and now’s the time to act.

Defining Legal Fiction

Legal fiction is defined as “an assumption and acceptance of something as fact by a court, although it may not be true, to allow a rule to operate or be applied in a manner that differs from its original purpose while leaving the letter of the law unchanged.” And Obergefell fits this definition as it has no basis in our Nation’s Charter.

Obergefell’s purported creation of a substantive federal right to same-sex “marriage” was grounded in the notion that in addition to rights explicitly stated in the Constitution, there are others — heretofore unknown to the Republic — that lurk in the shadows and include “intimate choices that define personal identity and beliefs” (Obergefell).

Simply put, Obergefell was created out of thin air with no foundation or constitutional precedent.

As Justice Thomas opined in McDonald v. City of Chicago (2010), “This [kind of] fiction is a particularly dangerous one.”

Dangerous, indeed. Obergefell’s “errors do not concern some arcane corner of the law of little importance to the American people,” but instead “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people” (Dobbs).

How Five Lawyers Fabricated a Constitutional ‘Right’

As Justice Scalia point out in his dissent in Obergefell, “It is of overwhelming importance” to determine “who it is that rules me ... [and Obergefell’s] decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court.”

Regardless of one’s views of same-sex “marriage” in general, everyone should care whether the Republic’s Charter authorized its recognition by judicial fiat. It didn’t. “The practice of constitutional revision be an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the right to govern themselves” (Obergefell, Scalia, J., dissenting) (emphasis added).

The legal fiction and rights-creating rabbit hole of substantive due process “exalts judges at the expense of the People from whom they derive their authority,” “distorts other areas of constitutional law,” and is “wielded to disastrous ends” (Dobbs). Put simply, this translates to the Court divining “new rights in line with its own, extraconstitutional value preferences and nullifies state laws that do not align with the judicially created guarantees” (Dobbs).

The Constitution Had ‘Nothing to Do with It’

Though proponents rejoiced on June 26, 2015, that a right to same-sex “marriage” had been created out of the recesses of the parchment upon which our Founders established a system of ordered liberty, that celebration was to a system unknown to the Republic. As the Chief Justice said at the time, celebrate the decision all you want, “But do not celebrate the Constitution. It had nothing to do with it” (Obergefell, emphasis added).

That Obergefell upended the Republic’s constitutional order is bad enough, but leaving that constitutionally infirmed inversion aside, the decision should be overturned because it did not even follow the Court’s prior quests into its constitutionally ungrounded game of rights-creating roulette.

Even assuming that the substantive due process fiction remains, which — for the good of the Constitution’s prescribed pecking order — it should not, Obergefell failed to follow the “disciplined” inquiry outlined in Washington v. Glucksberg (1997).

Glucksberg requires the Court to “insist on a careful description of the asserted fundamental liberty interest,” and “protects only those fundamental rights and liberties which are objectively, deeply rooted in this Nation’s history and tradition” (quoting Glucksberg). Obergefell satisfied neither requirement and should be overturned as a result.

In Obergefell, the five lawyers playing legislators did not even attempt to satisfy Glucksberg’s primary requirement of carefully describing the right at issue. Rather, the Obergefell majority explicitly disclaimed any efforts to provide a careful description of the alleged right. Furthermore, “nobody could rightly accuse the majority of taking a careful approach” in determining and describing the alleged fundamental right.” Obergefell was not grounded in the Nation’s history or traditions, nor could it have been because it was not rooted in any Nation’s history or traditions.

As Chief Justice Roberts noted, the right that the Obergefell majority created out of whole cloth was inconsistent with “the meaning of marriage that has persisted in every culture throughout human history” (Obergefell, Roberts, C.J., dissenting). Indeed, “marriage has existed for millennia and across civilizations [and] [f]or all those millennia, across all those civilizations, marriage referred to only one relationship: the union of a man and a woman”

In fact, it was the “unanimous judgment of all generations and all societies” until 10 years ago” (Obergefell, Scalia, J., dissenting).

Why Obergefell Matters

Ten years is a long time, and while it may not matter much to the average reader whether Obergefell was wrongly decided, it should.

It should matter that, shortly after Obergefell was decided, Kim Davis, a former Rowan County, Kentucky, Clerk, was pressured to adhere to its legal fiction and issue a same-sex “marriage” license against her sincerely held Christian beliefs. Now, a decade later, Liberty Counsel will petition the High Court to review Davis’ case.

As Obergefell’s first victim, Davis spent time in jail and is now faced with hundreds of thousands of dollars in damages for refusing to compromise her religious beliefs. Liberty Counsel will ask the Court whether the First Amendment shields Davis from liability for emotional damages based solely on hurt feelings while arguing that this disastrous same-sex “marriage” opinion should be overruled.

Ultimately, Obergefell “stands for nothing,” “takes from the People a question properly left to them,” and is “unabashedly based not on law” (Obergefell).

The fiction must end. Obergefell must go.

Originally published in the Christian Post and the Washington Stand.

For more from Daniel Schmid, Associate Vice President of Legal Affairs, click HERE.