Did Redefining Marriage Redefine Everything?

Looking back on the decade since the Obergefell decision

This weekend, we’re all APXGP fans — it’s worth it to see “F1: The Movie” on the big screen, I’m told! If it’s Friday, it’s Family Matters.

• ‘Love’ Was a Battlefield: The politics of marriage ten years after Obergefell

• Failure is Not an Option…Or is It?: One big, beautiful mess

• Breaking: SCOTUS Upholds Texas Age Verification Law: 6-3 decision gives go-ahead to age-gating explicit content

• It’s Me, Hi: Joint Letter to Congress, Our Sunday Visitor

• Parting Shots

‘Love’ Was a Battlefield

Yesterday marked a decade since a 5-4 Supreme Court decision found that the Fourteenth Amendment required states to recognize marriage between same-sex couples as valid. It’s worth reflecting on the decisions handed down in Obergefell v. Hodges, not just to remember what were hot-button divides at the time but to help identify where cultural progressivism started to slide into backlash-inducing excesses — and what the future of sex and gender wars might look like now.

As far as cultural shifts go, this one happened almost overnight. The first mainstream case for gay marriage is widely agreed to be

Andrew Sullivan

’s 1989 New Republic essay; in 1997, Hawai’i began offering a form of domestic partnerships and Massachusetts passed same-sex marriage in 2004 (the same year that strategic marriage amendments were credited for helping boost turnout in states key to George W. Bush’s re-election.) The issue was still very much contested even blue states like California, in 2008, and Maine, a year later, where voters proactively sought to reverse moves that would have broadened the definition of marriage to include same-sex couples. But throughout the early 2010s, sixteen states had already changed the definition of marriage to include same-sex partners; with the stroke of a judicial pen, that understanding became the law of the land nationwide. The headline of the [Asheville, N.C.] Citizen-Times captured the mainstream zeitgeist: “Love wins.”

White House archival photo via Flickr

It was a contentious, emotional battle on both sides. In his majority opinion, Justice Kennedy plaintively hoped that “religious organizations and persons [would be] given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” You didn’t have to be the founder of a popular web browser or the owner of a pizza parlor in Walkerton, Indiana, to quickly realize those words were not binding.

But the core of the case — and indeed, much of the public advocacy — was that expanding the definition of marriage would only be additive, and not change things for anyone else. Kennedy’s understanding of the case was that it involved “only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

If he was right — if the discussions around same-sex partnerships consisted of nothing else but that — the battles would have been less fraught, and a truce quicker to be achieved. Even the 2003 Lawrence case that decriminalized same-sex conduct overturned a law that was virtually never enforced, and very few social conservatives were seeking to prevent committed same-sex couples from visiting each other in the hospital, inheriting their property, being covered on each other’s health insurance, and spending the rest of their days together in a deeply committed way. Those who opposed civil unions on theological grounds chose the wrong hill to die on in a pluralistic democracy.

But the entire debate hinged on that word, “marriage,” because of the cultural power and resonance it has (or…had?), with ramifications not just for the adults involved but for the entire understanding of parenthood and gender identity that we have seen fought about, bitterly, over the past decade.

In his dissent, Justice Alito summarized the traditional view: “States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” And Chief Justice Roberts, in his dissent delivered from the bench (the only one, to date, which the Chief has delivered orally), was critical not just of the judicial overreach, but with the blitheness with which he saw the majority opinion treating questions of long-term societal harm.

“Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept…

“The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

“Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, ‘Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.’”¹ (emphasis mine)

I think this helps explain not just the tensions around same-sex marriage and its aftermath, but some of the most fundamental divides between conservative and progressive approaches to family policy. On the left, the conception of the family is constructed around the child, a collection of individuals who give up some of their autonomy in order to form their small “haven in a heartless world.” Whereas as on the right, family policy tends to starts from the relationship that begets that child, the undeniable fact that each of us have a biological mother and father, and the reality and claims on justice that flows from that recognition even if those relationships become strained or severed.

Of course, progressive parents love their kids just as much as conservatives ones do! But on a theoretical level, left-leaning scholarship places much heavier emphasis on concepts like “chosen family,” not to mention the 1970s revolution in divorce law, that subordinate biology for choice and contract. A progressive understanding of family policy — today, often given the label of “family diversity” — sees no fundamental difference between a child being raised by one parent, or two parents, or parents it shares no biological relationship with, because that institution is socially created to be considered “family.” A conservative, on the other hand, would often start with the biological relationship between father, mother, and child, and build family-supporting policies out from there.

In redefining marriage, that progressive understanding of family diversity won out in law. Same-sex couples now had the same right to pursue parenthood as heterosexual couples did, even though as a biological fact they would require a third party to be able to engender of child of their own. If there were no social expectations around whether a child would be born to a “mom” and a “dad”, but rather “Parent 1” and “Parent 2” on the birth certificate, there was nothing inherently important about, say, keeping it at two parents. It is hard to imagine the Biden administration’s push to replace “mother” with “birthing parent,” as well as all the other language games that became popular in the 2016-2024 era (“chestfeeding,” “people with cervixes,” etc.) did not flow at least partially out of the logic embraced by the Obergefell decision. Having declared marriage (as the locus of childbearing) to be socially determined, progressive activists sought to reinterpret sex and gender as well.

But that proved a bridge too far. Sullivan, in his own 10-year retrospective essay published at the New York Times, tries to split off the movement for gay and lesbian rights from the transgender activism that sought to position itself as the natural heir.

“The gay rights movement, especially in the marriage years, had long asked for simple liberal equality and mutual respect — live and let live. Reform, not revolution. No one’s straight marriage would change if gay marriage arrived, we pledged. You can bring up your children however you like. We will leave you alone. We will leave your children alone. But in the wake of victory, L.G.B.T.Q.+ groups reneged on that pledge.”

He argues that transgender activists got far out over their skies in pushing “gender-affirming care,” seeking to shame dissenters and use the power of the state and the press to lock in a new consensus — in a sense, extending the playbook that worked in the marriage battles onto new, more controversial terrain. And as the recent “vibe shift” has shown, the backlash was real; particularly, as Sullivan correctly notes, when it came to kids.

With the benefit of hindsight, it’s easy to argue that the religious right activists of the 1990s and 2000s spent too much time fighting domestic partnerships, adoption by gay couples², and civil unions, and too little time rebuilding a cultural understanding of marriage as the institution ordered around the procreation of a new human person. In that sense, it should have perhaps come as no surprise when, far from being “left alone,” dissenters faced professional and social sanction for not adapting their beliefs to the prevailing winds. As we saw from the aftermath of the Dobbs decision, social conservatives have been slow to adapt to being an ideological minority in a pluralistic nation, instead of assuming that a latent moral majority would be enough to save them.

But it’s also the case, as I suggested to

Richard Hanania

on Twitter, that with the genie of gender ideology having been unleashed, the long-term consequences of marriage redefinition are leading some conservatives who were otherwise convinced by the argument to “live and let live” to now have second thoughts. In his breakdown of the polling data,

Ryan Burge

finds a measurable backlash to same-sex marriage across the board, but particularly concentrated among Christians since around 2018.

There's Been a Backlash Against Same-Sex Marriage Among a Growing Group of Christians

In other words, the lasting legacy of Obergefell was simply not the salutary commitments same-sex couples made to each other in pledging to forswear all others till death to they part. In a country as wide and pluralistic as the United States is, conservatives can indeed offer a hearty mazel tov to couples of whatever background and creed who intend a lifelong commitment.

But the battle to legally redefine “marriage” seemed to lead to a society in which all concepts of sex and gender were socially determined, in which talking about “mothers” and “fathers” rather than “parents” in academic seminars were cause for throat-clearing and uncomfortable silences, in which observing that biological males had unfair advantages on the playing field against biologically female competitors was treated as rank bigotry, in which it was considered gauche to note that the case for maternity leave rested on different grounds than gender-neutral parental leave, in which religious convictions about the meaning of sex and reproduction were asked (or commanded) to be left at the door, Justice Kennedy’s reassurances notwithstanding. It wasn’t just “marriage” that was redefined — it was seemingly every social interaction and institution with sex-specific dimensions (or so the goal seemed from the activist class, anyway.)

That, as much as anything, explains the backlash against the legalization of same-sex marriage we have seen in recent years. As it turns out, as Hot Air’s John Sexton wrote, “Given the stark choice between having a culture in which little kids are told they could grow up to be boys or girls and gay marriage for adults or a world where we have neither, a lot of people will chose neither.”

That stark choice seems unlikely to be the one that will face the America of the 21st century. Sullivan’s essay points to a potential path of moderation for cultural moderates and progressives, one in which the post-Obergefell understanding of marriage remains but the gender excesses of the Bud Light/Penn swimming era are seen as missteps.

For that to be a stable status quo, however, it would require the LGBTQ+ affinity groups Sullivan writes about to take a hard look at where, exactly, they would identify the logic between Obergefell and Skrmetti as having gone off the rails. And it would become even more stable if those who celebrated when “love won” could come to a greater appreciation for those whose understanding of the family is rooted in something different than their own — and who can seek policy steps to support parents even as our anthropology of what “family” and “marriage” consist of are grounded in very different starting points. After all, if social conservatives were right that changing the definition of marriage could lead to unforeseen social consequences, perhaps we were right about one or two other things as well.

Failure is Not an Option…Or is It?

No one reads Family Matters for up-to-the-minute analysis of the likely final shape of the “One, Big, Beautiful Bill,” and it’s unclear if any publication under the sun could offer such an analysis anyway. Byrd baths, Byrd droppings, and all sorts of avian-themed puns are the name of the game in D.C. this week, putting Congressional Republicans under the gun to produce a bill before their self-imposed July 4th deadline. And the Senate parliamentarian has made their path harder by wielding a red pen with gusto.³

The odds of one big beautiful signing ceremony by Independence Day seem low, but the odds of one happening at all still seem fairly high if only because every elected Republican knows that he or she was elected to chew gum and cut taxes, and there’s a massive shortage of chewing gum in the D.C. area. They simply cannot emerge from the reconciliation process empty-handed, no matter how ugly the final product looks (and, as covered in previous editions of Family Matters, some of the individual provisions are definitely not what you would call lookers.)

The need to focus on essentials has led some critical voices to suggest the GOP should ditch an expansion of the Child Tax Credit (the House and Senate have proposed different ideas but each would boost the CTC above its current $2,000 per-child topline value.) For National Review Online,

Ramesh Ponnuru

offered some extremely level-headed thoughts on the rationale and efficacy of pro-family tax policy in the context of the Oh-Triple-B.

Referring to the per-year maximum credit level in the Senate bill, [the Wall Street Journal’s Sean] Hennessey asks: “Have you ever met anyone who could be talked into starting a family with the promise of a time-limited, $2,500 partially refundable tax credit?” No. Do I think that people who would like to start a family might find it less daunting to do so if it means a smaller financial hit? And if, because of that improvement in young families’ material conditions, they see more of their peers making a go of it? Yes.

As Ramesh concludes, the rationale for including Child Tax Credit expansion in whatever tax package crosses the finish line is not as a “bribe” to would-be parents, but as a tangible recognition of the work that parents do to carry society on. It would be a tremendous mistake for Republicans looking to slim down the OBBB to look at the Child Tax Credit for any savings (and per reporting by Axios’ Stef Kight and Hans Nichols, the family tax elements far outstrip the more gimmicky portions of the bill in the White House’s own poling; given the underwater politics of the overall package, going big on the CTC may end up sweetening public opinion on an otherwise-shakily popular bill.)

In a perfect world, reconciliation packages could be tremendous opportunities to rethink how the CTC interfaces with other child-related tax elements, sand down or remove marriage penalties, or increase the credit’s ability to deliver for low-income families, such as by phasing the credit in from the first dollar. In the world we live in, this bill has so many moving parts that a modest bump in the CTC’s top-line value seems like the most reasonable thing to expect. Backsliding from the values that have been discussed in the House and Senate — already, fairly modest increases — would be a catastrophic own goal.

Breaking: SCOTUS Upholds Texas Age Verification Law

If no one reads Family Matters for up-to-the-minute legislative analysis, even fewer read it for breaking legal news, but for those dedicated readers we offer you an instant reaction on the news, hot off the press, that the Supreme Court sided with the state of Texas’ age verification law in a 6-3 decision written by Justice Thomas.

The law requires any website whose content is one-third or more considered “harmful to minors” to verify the age of users. Sites that host explicit content had filed suit, alleging that precedent from the 1990s and 2000s — a time at which the internet was vastly different than it is now, and the smartphone was hardly a sparkle in Steve Jobs’ mind — meant that such barriers violated their adult users’ privacy.

In his majority opinion, Justice Thomas explains why the Texas law is constitutional:

“With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content—both benign and obscene—at almost any time and place, with an ease that would have been unimaginable at the time of Reno and Ashcroft II…Age-verification laws like H. B. 1181 fall within States’ authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective.”

This is the right decision — as the counsel for Texas pointed out during oral arguments, it would make no sense to apply strict scrutiny to this law and not to laws barring minors from admission to strip clubs. and should give the green light to states — both red and blue — to pass laws making it more difficult for kids to access explicit content online.

It’s Me, Hi

I was counted among other conservative signatories to a letter encouraging Congressional Republicans to prioritize pro-family tax provisions in their negotiations. Other signatories include Rick Santorum, Newt Gingrich, Penny Nance, Robby George, Brad Wilcox, Kristan Hawkins, Rusty Reno, Ramesh Ponnuru, Yuval Levin, Kathryn Jean Lopez, Josh McCabe, Lyman Stone, and more:

“While there are many pressing priorities before you, the CTC remains one of the most popular provisions in the bill, and for good reason, as it incentivizes working families all across America to work, raise strong families, and strengthen American communities.”

I spoke to Kimberley Heatherington of Our Sunday Visitor about the “One, Big, Beautiful Bill’s” impact on safety-net programs like SNAP and Medicaid:

“If you’re specifically concerned about pregnant women and newborn babies, the good news is that nothing in the bill directly takes aim at them…But that’s not to say there aren’t some meaningful changes that are included in the One Big Bill that could end up impacting families with young kids indirectly — and certainly could make it a lot harder for low-income families trying to put food on the table.”

Parting Shots

• As you may have heard, the Supreme Court ruled that the state of South Carolina can bar Planned Parenthood from participating in the state’s Medicaid program, a win for pro-life advocates. My EPPC colleague Carter Snead told National Review that the decision is “hugely important insofar as it removes a key obstacle from states who want to provide care for vulnerable women, children, and families under Medicaid without spending taxpayer dollars to support organizations that provide abortions.”

• A new paper in the American Journal of Public Health surveys women in states with restrictions on abortion, and finds that 3% of them ended up delivering the baby (the majority of those surveyed traveled out of state to seek an abortion.)

• Michael Kofoed walks through the economics of adding work requirements to Medicaid, suggesting that Republicans who want to strengthen low-wage workers’ connection to the labor force should look elsewhere (Deseret News)

• My EPPC colleague Henry Olsen gives advice to Congressional Republicans on how to make the Oh-Triple-B more politically popular (National Review)

• My EPPC colleague

  Alexandra DeSanctis
  offers thoughts on why the Republican Party (and the White House) should think twice before uncritically signing on to efforts to expand access to IVF (Washington Examiner)

• James Pethokoukis
  is far from the only writer to argue that Japan’s declining population isn’t a problem that stable labor markets and technical innovation could adapt to, but settling for a more orderly way of “going gentle into that good night” does feel like a slightly odd argument from the author of “The Conservative Futurist” (Washington Post)

• A new Pew Research Center analysis finds that the total number of children adults plan to have has decreased. Lyman Stone argues the apparent decline is overblown due to his skepticism of the weighting used and the NSFG’s switch to online data gathering. But (a) even ignoring the 2022-2023 wave it’s pretty clear reported desires are down from the early 2000s and (b) the NSFG numbers support the broader cultural turn away from parenthood we see in novels, movies, and newspaper columns, so I’m inclined to believe them at least directionally.

• The National Governors Association has a report encouraging state lawmakers to consider both the demand and supply (quelle idée!) of child care policy

• Lila Rose and Lauren Rubal have advice for the White House on what a pro-life approach to fertility policy looks like (Newsweek)

• Chabeli Carrazana
  writes about how federal abortion data may become less reliable in the wake of DOGE-era reorganizations and staffing cuts at the Centers for Disease Control (The 19th)

• California is delaying the implementation of its IVF insurance mandate until 2026 due to complications in designing the right approach to coverage (California Healthline)

• Montana Gov. Greg Gianforte vetoed bills that would have eliminated co-pays in the reduced-price school lunch program and made state child workers categorically eligible for state subsidies, as well as a bill that would have expanded a tax credit available to elderly homeowners (Montana Free Press)

• Georgia’s expanded child and dependent care tax credit and new $250 non-refundable tax credit for each child under age 6 take effect July 1.

• In New York, low-income households on public assistance will be eligible for a “Birth Allowance for Beginning Year” benefit of $1,800, a one-time cash payment intended to help new parents with expenses related to childbirth

• Maine has loosened up some requirements for child care providers by allowing them to use an outdoor recreational facility located "reasonably" close by, rather than mandating they provide their own.

• We are approaching the point at which there will be little new to say on the pro-natalism beat — but we’re not there yet, as shown by this sharp essay from

  Elissa Strauss
  , dinging both the right and left for where they go wrong:

  THE ESSAY: What Both the Left and the Right Get Wrong about Pronatalism

Comments and criticism both welcome, albeit not quite equally; send me a postcard, drop me a line, and then sign up for more content and analysis from EPPC scholars.

1. Roberts here cites James Q. Wilson’s “The Marriage Problem”

2. Adoption, of course, differs from surrogacy or other forms of third-party reproduction because it is most concerned with the welfare of children who are already born, rather than embarking on (at times) ethically complicated ways of bringing new children into existence.

3. In addition to the budgetary challenges posted by ruling that the Medicaid provider tax changes would be subject to a 60-vote threshold, the Parliamentarian has also ruled against the school choice program featured on a prior edition of Family Matters, the endowment tax exemption for religious schools, the EITC paperwork requirement, the sale of a small portion of public lands intended for housing construction, restrictions on Obamacare subsidies going to health plans that cover abortion, preventing Medicaid from funding so-called “gender-affirming care” for minors, and more.