Obergefell v. Hodges: A Wrongheaded SCOTUS Decision

by Jeffrey Ludwig, New American Prophet, ©2025

(Oct. 9, 2025) — In a recent article, Emily Wood Hawley passionately remarks, “Marriage does not truly exist outside of what God established — a sacred union between one man and one woman for life — because the state cannot redefine an institution God ordained.” The redefinition Hawley is referring to is the Obergefell v. Hodges decision of 2015. Justice Anthony Kennedy wrote the majority opinion which was handed down in a 5-4 vote stating that homosexual marriage was a Constitutionally legitimate right that belonged to all homosexuals in the USA.

Justice Kennedy gave three reasons in SCOTUS’ landmark decision why homosexual marriage is both legitimate and Constitutional. Let’s look at those reasons with a brief assessment of each:

1.”[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” His use of the Fourteenth Amendment is thus comparing homosexuals who had not been deemed free to marry as being like the slaves who were held in bondage until the Fourteenth Amendment. Imagine comparing a few hundred years of slavery to thousands of years of heterosexual marriage. This is another twisted interpretation of the Fourteenth Amendment not unlike the granting of birthright citizenship to babies born of a foreign parent while mom was visiting the USA. To make an analogy between former bond slaves gaining the rights of citizens and homosexuals being allowed to marry is a crude and untenable intellectual move.

Justice Kennedy fails to distinguish here between the right to do something and the natural law that underlies that right. Someone who robs a store at gunpoint certainly has a right to have money to pay his bills but does not have the right to commit armed robbery to get that money. The thief’s right to have money and his right to pay his bills are real enough, but neither “right” (actually a private, survival need) does not justify the robbery. His right to pay his bills is trumped by it being wrong to claim another’s property as his own.

Similarly, a party’s need to be close to another person and share a lifelong intimate relationship of mutual interdependency is perfectly understandable. However, in both the Jewish and Christian scriptures, marriage is explicitly only between a man and a woman. All other claims to marriage are deemed illegitimate. Furthermore, this so-called bias in favor of heterosexuality as fundamental to marriage is upheld by the overwhelming number of societies throughout the world irrespective of their religion, although multiple wives are sometimes allowed. Although there are a few exceptions among certain small groups, the invalidity of same sex marriage is a worldwide phenomenon as well as a Judeo-Christian prescription.

2. Justice Kennedy gave another justification for voting in favor of homosexual marriage, namely “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage.” But does the indefinite extension of love between two men or two women justify marriage?  This writer at one time owned a pet gerbil and at other times a pet turtle and a pet dog. All these animals were loved, especially by this writer’s young daughter, long after – possibly to this day, though years have passed – these pets died. Yet, it would be silly or at best merely humorous to give any credence to there being a marriage between any or all of these sweet pets with a human being. Anyone suggesting otherwise would most assuredly disrespect the ideal of marriage.

3. Incredibly, Justice Kennedy stated, “Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.” Presumably, his point is that no one can second guess or deny decisions that are so deeply personal or “intimate.” Yet he undermines his own position by the examples he provides of the inviolability of decisions as personal as marriage.

Contraception does not even come into play as conception is out of the question in homosexual marriage. Similarly, procreation which he correctly sees as being intimately anticipated is completely non-existent in homosexual marriage. Family relationships are of course beautiful to anticipate and even more inspiring and beautiful to live, but if two women are married, which one is anticipating the role of father to the loved adoptee, and likewise if two males are married, which one is anticipating his role as “mother”?

Assuming the role of female obviously does not make one a female any more than wearing a skirt or dress makes one a female. As Aristotle taught us more than 2300 years ago, different substances and things are what they are because of their unique essence (ousia).  Thus, a red rose, a white rose, and a yellow rose are all roses because each of these different colored flowers has the same essence. The XY chromosome that each male has at his biological core is his essence.

If two men are conjoined, are we then to distinguish between homosexual marriages where one of the two men is a transgender male who believes he is a female or is it between two males who still identify as male albeit as homosexual males? This is a slippery slope that is beyond being merely “confusing.”

De-stabilizing of family identity is essential for the de-stabilizing of society since family is the cornerstone of society which bulwarks the legal values, the historical roots, the religious orientations, and the political unity of a nation. For Karl Marx, the bourgeois family (meaning “the family”) has to go because it is an economic sub-category that promotes selfish competitiveness. Because the homosexual family is a weakening of the traditional “bourgeois” family, the left is automatically drawn to support of this mutation.

Chief Justice John Roberts, speaking for the minority of four justices regarding the 2015 Obergefell decision, stated as part of his dissent, “The right it [the five vote majority] announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice’.”

He emphasized that many of the arguments that the five judges used to support homosexual marriage could be used to support polygamy. He also stressed that the majority opinion showed a lack of humility by having five judges make this decision rather than leaving it up to the citizenry. Indeed, he knew that this matter had already been voted on by 35 states and been rejected by all those states including twice by California, although the governors of California had not implemented those plebiscites.

In a new case of Davis v. Ermold, Liberty Counsel will be asking SCOTUS to consider whether Obergefell v. Hodges should be overturned. The Court’s decision about whether to take the case will, according to Liberty Counsel, be made in the next few days.