How the Courts Used Obergefell to Rewrite Family Law
Ten years ago today—on June 26, 2015—the U.S. Supreme Court granted same-sex couples the legal right to marriage. The infamous Obergefell v. Hodges ruling has proven to be among our nation’s most consequential and harmful decisions, especially for children. Even though, to borrow a phrase originally written about Roe v. Wade, its ruling in the case “is not constitutional law and gives almost no sense of an obligation to try to be,” courts across the nation and government officials have treated Obergefell as if it accomplished much more than it did.
In Obergefell, the Court asserted that civil marriage is not about the procreative union of husband and wife but instead is a government device to give benefits to adult companions. However, numerous courts since have ruled that because marriage has been historically associated with child-rearing, Obergefell requires states to also give licensed same-sex partners legal access to and custody of children otherwise not theirs. (Among these consequential cases are McLaughlin v. Jones, Boquet v. Boquet, Henderson v. Box, Potts v. Potts, Schaberg v. Schaberg, Harrison v. Harrison, and In the Interest of D.A.A.-B).
Since same-sex couples cannot procreate, advocates pointed to reproductive technology as the means for fulfilling this imaginary mandate. Thus, to satisfy the demands of same-sex couples for children, children are bought and sold through IVF and surrogacy. “Mothers” are rented for their wombs. “Fathers” are reduced to sources of genetic material. Human connection is manufactured and not created through meaningful relations. The family is drained of its profound nature as God intended, as well as its significance that historically warranted authority and immunity from legal manipulation.
While the Court may not have intended the antihuman techno-regime that resulted from Obergefell, it left wide open these legal questions. Rather than merely “expand” marriage to another relationship, as we were told at the time, Obergefell was a rejection of marriage as God designed it and as it was always understood. Though lawmakers and judges were strongly pressured to succumb to this new vision, there are ways for officials to honor the natural family and resist hostile innovations against it.
For instance, states can maintain original birth certificates that record the child’s mother and father and exclude entries for persons who are neither. States can settle child custody contests with a default rule in favor of fit natural parents, and against genetic strangers. States can enforce already existing adoption laws, requiring the non-natural mother or father of the child to adopt before being considered a legal parent, rather than inexplicitly creating exceptions for same-sex couples.
In many states, however, the essential questions about who makes a parent have not been carefully addressed and instead have been liberally interpreted to favor non-traditional family arrangements. Two years after Obergefell disrupted the institution of marriage, another case, Pavan v. Smith, ruled that birth certificates no longer needed to show the genealogical mother and father. This was intended so same-sex partners could be named parents of the child born, even though one or both may not be related to, or even have adoptive relation with, that child. Even worse, to keep up with the emerging gender ideologies, numerous courts have ruled it unconstitutional to presume the “husband” of the woman giving birth is the natural father, or even a man at all.
Other examples abound of courts similarly misdefining and defying words in family law statutes to accommodate progressive ideals of sex, marriage, and “gender.” Activist lower courts have taken up and ran with radical interpretations that Obergefell left open. And yet, the fact remains that Obergefell does not require any of these policy upheavals.
For example, the case did not bring before the Supreme Court how States should treat paternity, legitimacy, custody, adoption requirements, or birth certificates. The Court majority in Obergefell did not even cite, much less evaluate the pedigree or justifications for even one state law on any of these issues. And, even if it had, the Supreme Court has no authority to invalidate historic state laws without ever having had a case before it on such specific questions. Normally, the Court would evaluate each statute and then rule on the case. In other words, Obergefell did not—and could not—topple any historic state laws about the makeup of family that were not presented, briefed, argued, or even identified in the proceedings.
Similarly, the Obergefell decision doesn’t raise or resolve the question of a child’s relationship to his mother and father. And yet, because of Obergefell, subsequent rulings have—for the first time in the history of the world—treated laws that protect children as unconstitutional. Elected officials have every reason to refuse the ousting of venerable family law standards and to reinstate those that have been set aside.
The progressive advocacy and liberties other courts and lawmakers have taken with Obergefell are not binding. Though it may have changed the legal definition of marriage, it stands on dicey legal ground. Even more, it has no legal authority to change the definition of family.
Photo Courtesy: ©iStock/Getty Images Plus/AlessandroPhoto
Published Date: June 26, 2026
John Stonestreet is President of the Colson Center for Christian Worldview, and radio host of BreakPoint, a daily national radio program providing thought-provoking commentaries on current events and life issues from a biblical worldview. John holds degrees from Trinity Evangelical Divinity School (IL) and Bryan College (TN), and is the co-author of Making Sense of Your World: A Biblical Worldview.
The views expressed in this commentary do not necessarily reflect those of CrosswalkHeadlines.
BreakPoint is a program of the Colson Center for Christian Worldview. BreakPoint commentaries offer incisive content people can't find anywhere else; content that cuts through the fog of relativism and the news cycle with truth and compassion. Founded by Chuck Colson (1931 – 2012) in 1991 as a daily radio broadcast, BreakPoint provides a Christian perspective on today's news and trends. Today, you can get it in written and a variety of audio formats: on the web, the radio, or your favorite podcast app on the go.
