In late January, the Idaho House of Representatives passed a memorandum calling on the U.S. Supreme Court to “reverse” its 2015 gay marriage decision, Obergefell v. Hodges, “and restore the natural definition of marriage, a union of one man and one woman.”
The memo passed 46 to 24 in the House and is heading to the Idaho Senate. If it passes the senate, it will be sent on to the Supreme Court as one more formal encouragement that it take up a case that might overturn Obergefell.
The memo excoriates the “illegitimate overreach” in Obergefell, arguing that the decision redefined marriage in direct opposition to its natural, age-old definition, one also enshrined in Idaho’s state constitution.
The argument might seem 10 years late, but it comes at a time when — after the 2022 repeal of Roe v. Wade and the reinstallation of Trump — the Supreme Court might be receptive to such a call.
Back in 2020, sitting justices Clarence Thomas and Samuel Alito argued that the Obergefell decision should be overturned — or at least fixed. The justices agreed that Obergefell had no basis at all in the 14th Amendment. The decision functions as law, overriding state and previous federal law to redefine the essence of marriage in a manner at odds with all major religions on earth. Obergefell rode rough-shod over these religions and dozens of state constitutions on the bases of a moral — not legal — opinion that the traditional definition of marriage espouses “a bigoted worldview,” at the dissenting opinion described it.
“The court has created a problem that only it can fix,” the justices wrote. “Until then, Obergefell will continue to have “ruinous consequences for religious liberty.’”
Why Repeal Obergefell?
In a nation where young women are celebrating because men who think they are women may be no longer allowed to smash records in women’s sports, arguing about the natural definition of marriage may seem passe.
And maybe it is.
But it’s important to realize that because of how Obergefell was decided, the same-sex marriage issue is logically intertwined with the transgender craze of the last 10 years. Obergefell didn’t just say, “same-sex couples operate in ways pretty similar to infertile opposite-sex couples from a legal perspective, so let’s give marriage certificates to those who want them.” Obergefell also argued that gays and lesbians are designed by nature only to marry one another.
Marriage has been thought of as a permanent sexually sealed union between a man and woman from time immemorial, but for gays and lesbians, Obergefell declared, “their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
In other words, Obergefell doesn’t argue that the legal definition of marriage should be adjusted for practical reasons. The court, instead, rejected the idea that men and women are naturally meant for one another, sexually speaking. Obergefell declares that as a dictate of nature some physically normal people’s sexual biology is “meant” to be used with a member of the same sex.
The court decided that some physically normal men and women are directed by their “immutable nature” to “only” marry members of their own sex. This rather dubious assumption became the entire basis for their claim that marriage must be redefined as a 14th Amendment right.
Transgenderism
But how did this relate to the trans phenomenon? The trans argument — which became popular immediately after Obergefell — declared that some people actually are the sexual opposite of their completely obvious physical biology. Obergefell declared the opposite of the obvious design-based function of male-female sexuality: a man can be sexually “meant for” a man. A woman can be sexually “meant for” a woman. The trans argument took a further step by denying not just apparent design, but actual, physical reality: a man can literally be a woman.
The logic in Obergefell is less socially problematic than transgenderism. We do not always have to use our bodies exactly according to their apparent design function. But Obergefell positively claims that some physically normal people are designed by nature to have sex with their own sex. There is the same disregard for physical reality as we find in the claim that a person can actually be by nature a member of the opposite sex.
A Reality Check
There are only two sexes — male and female — and these two sexes are equipped with complementary halves of the human sexual system. That is a matter of immutable nature. Those who identify as “gay” or “lesbian,” as well as those who simply enjoy a little “gay” sex on the side, have the same immutable nature as everyone else.
As for people’s sexual attractions and desires, they are — like all attractions and desires — not really “immutable” or biologically inborn. As I have argued at length before, people’s non-heterosexual sexual preferences are usually quite fluid over the course of five or ten years, particularly before people make choices in life and settle down.
This doesn’t mean that there should be no laws in America accommodating those who commit to a gay lifestyle. But it does mean that Obergefell ought to be scrapped and replaced with something rational — something that respects those who wish to be in committed same-sex relationships as well as those who for religious or moral reasons would not choose to do the same.
Will SCOTUS Reconsider Obergefell in 2025?
Statements like Idaho’s are only toothless petitions — what’s needed is lawsuits and robust debate.
Obergefell could be overturned by the same five justices who overturned Roe v. Wade. The likelihood of this was enough to cause Democrats to push through a repeal of the Defense of Marriage Act in 2022. Two years later, in the November 2024 election, three left-leaning states took the trouble to alter their constitutions by ballot for the same reason — because they knew Obergefell might go the way of Roe v Wade.
Nevertheless, to date, it is not clear if Obergefell will face serious reexamination. The only current case that seeks to challenge Obergefell stems from the protracted legal wranglings surrounding Kim Davis’ case from 2015. The matter is in the Sixth Circuit, but it’s not likely to be heard by SCOTUS — the court, including Thomas and Alito, decided against reviewing her case back in 2020.
And so, for now — logic or no logic — Obergefell remains the law of the land.