The Illegal Trouble with Obergefell

On June 26, 2015, a five-judge majority of the United States Supreme Court redefined marriage in the case of Obergefell v. Hodges. This was not a surprise to most culture- and court-watchers, but the legal reasoning justifying the Court’s opinion, written by Justice Anthony Kennedy, was far less legal and far less reasonable than most had expected from a justice on the nation’s high court.

The commentary on this case is already vast—millions of words of analysis have already been blogged, emailed, tweeted, and printed, and much of it is wise and helpful. So rather than weighing in with too much detail, I want to suggest three aspects of the case that are most troubling.

Law or Raw Power?

First, the most troubling aspect of Obergefell is what it says about law itself and what that means for the future of the rule of law in America. This decision was not based on law—in fact, it had nothing to do with the law. The case was decided, instead, on pure will: the political and social preferences of five justices on the Supreme Court.

Radical law professor Andy Koppelman, a long-time advocate for homosexual marriage, who celebrated the result of the case, admits:

. . . the Court’s opinion . . . was far less legal and far less reasonable than most had expected . . .

Opponents of the decision are already claiming that the Court was just making it up, on the basis of the judges’ personal preferences. This opinion supports that charge. (1)

Chief Justice Roberts puts it this way in his dissent:

If you are among the many Americans who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

The most troubling aspect of Obergefell is not what it does to marriage. Marriage has been in trouble for decades, thanks to the poor showing by the Church on that score and our failure to raise a biblically-literate generation with tools to hold fast under cultural onslaught. No, the alarming thing about this opinion is how it treats law itself, the role of judges, and the Constitution.

Obergefell is in many ways a culmination of 50 years of judicial law-making by raw political power. If law does not constrain judges, then words can be ignored (think “right to privacy,” which appears nowhere in the Constitution, but instead “emanates from penumbras” of other rights (2)), and a judge’s personal preference may be substituted for the will of the people, laws passed by Congress, or the language of the Constitution itself, as the case may be. Justice Scalia sums it up in his Obergefell dissent:

With Obergefell . . . it appears that the Court has brought . . . the transition from the rule of law to rule by elite will.

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by 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 freedom to govern themselves.

Law is more than simply raw power politics—the struggle over who gets to decide what the rules are. With Obergefell, however, it appears that the Court has brought to completion the transition from the rule of law to rule by elite will.

What is the Law Teaching?

The second troubling aspect of Obergefell concerns the teaching function of the law. Law “teaches”—it tells a people how they should live together. Law is certainly not the ultimate moral guideline in society, but it is in fact a moral guideline, and Obergefell retards the law’s teaching function in at least two areas.

The first, of course, is marriage. The state may no longer teach that children are better off with both a mother and a father or that homosexual relations are damaging to a society. This will have serious and long-lasting consequences.

. . . we must remember that the Church is the pillar and banner of truth . . .

Second, in Obergefell the court reinforces a common false teaching about the state. The Court implies through the opinion that the state is the source of rights, even rights over which it has been given no jurisdiction. Consider what the state did in order to redefine marriage. It took an institution that pre-existed the state (marriage) and that was defined by thousands of years of human history, and simply declared that it was something that it was not. The arrogance in this usurpation is stunning (3). And yet coming generations, unless the Church continues to proclaim the real truth, will simply assume that all rights, all reality, all truth comes from the State.


The final troubling aspect of Obergefell is the damage it will do to families and to Western societies. That damage will likely be considerable.

Religious institutions, for example, particularly colleges and parachurch ministries, will come under increasing pressure to violate their deeply-held convictions in the name of non-discrimination laws. While Kennedy’s opinion favorably mentions the right of those who disagree with the redefinition of marriage upon religious grounds, his approach and language do not inspire confidence.

. . . we are called to shine as lights in the world amidst a crooked and twisted generation, holding fast to the word of life.

In addition, poor women and children will suffer from the damage done to family structures by this decision. Because the law no longer teaches that both a father and a mother are important to a strong family, only the Church remains to hold the line on strong family commitments as a central virtue. As fathers lose incentive—and moral instruction—to commit to women and children, those families least connected to churches and strong virtue-centered communities will suffer the most.

Society at large will also suffer, as groups and individuals seek to push the envelope even further on “marriage” relationships. Justice Kennedy’s broad language on the “right” to marry does nothing to suggest why thruples, group marriages, short-term wed-leases, or polygamous relationships should not be protected by law. (4)

* * *

In summary, this development in American law signals vast social and legal change, some of which has been in the works for decades. As power politics replaces law as the governing force in this country, as law continues to teach false views of the state, the family, and children, and as society suffers for it, we must remember that the Church is the pillar and banner of truth, with a proclamatory mission in the world, and that we are called to shine as lights in the world amidst a crooked and twisted generation, holding fast to the word of life. (5)

We Will Not Bow –

Saving the Christian State –

What Doest the Rainbow Mean for Gays? –




(2) Justice William O. Douglass, in Griswold v. Connecticut (1965), made up the “Constitutional right” to privacy, which “emanated from penumbras” in the Bill of Rights. This later became the basis for abortion rights.

(3) See Justice Scalia’s dissent on this topic as well.

(4) The Heritage Foundation’s Ryan Anderson has written and spoken extensively on these topics. See Girgis, Anderson, and George, What is Marriage? Man and Woman: A Defense (2012) and Anderson’s forthcoming Truth Overruled: The Future of Marriage and Religious Freedom (2015).


(5) See Philippians 2:14-16 (ESV).

Mike Schutt
Michael “Mike” P. Schutt is Associate Professor of Law at Regent University and Director of the Institute for Christian Legal Studies (ICLS). ICLS seeks to encourage Christian law students, professors, and lawyers to seek and study biblical truth as it relates to law and legal institutions. He also serves with InterVarsity Christian Fellowship as the national coordinator of its Law School Ministry and is the author of "Redeeming Law: Christian Calling and the Legal Profession." He and his wife, Lisa, have three children and make their home in Mount Pleasant, Texas.

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  1. If you believe that marriage is a God-created institution, then how could it be that the Supreme Court changed it? Wouldn’t t be more accurate to say that for purposes of United States laws, the Supreme Court changed the definition of marriage? I do not like reinforcing the idea that American law created the institution of marriage.

  2. Thanks, Joel and Earick for your comments!

    Joel, we have corresponded about this briefly by email, but for the benefit of folks who want to join in the conversation by comment or desire to see my response, I’ll summarize.

    I agree that the court has not changed marriage itself, since it cannot do that, as you correctly suggest, but has “redefined” it. Those are the words I used in the piece and in the opening sentence, so i don’t think I say much to communicate otherwise. So, agreed!

    I also indicate pretty clearly that marriage pre-exists the state and that the state has no jurisdiction over its definition. One of the main “troubles with Obergefell” to me is the false teaching by the state in this regard. So, yes, that seems to be my point as well. I call it “usurpation” by the state, in fact. So . . . agreed.

    I’m pretty sure that I don’t give any indication in the essay that American law created the institution of marriage. I agree that would be a problem!

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