Moss: the ‘Obergefell’ Decision

July 26, 2022

By Richard Moss, M.D.

With the overturning of Roe vs. Wade in the recent Dobbs vs. Jackson Women’s Health Organization opinion, the Supreme Court ended the recognition of a constitutional right to abortion and returned the matter to the states, where it has always belonged. With this, it is reasonable to reconsider the Obergefell decision of 2015, which legalized homosexual marriage throughout the land. Obergefell vs. Hodges, decided June 26, 2015, in a split 5-4 decision (Anthony Kennedy joined with the four liberal justices), determined that same sex couples had a fundamental right to marry based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution.

Here too, as in Roe vs. Wade, unelected lawyers in black robes, functioning as a supreme legislature, acting against our nation’s history, culture, and traditions, imposed upon the land, the fifty states and their democratically elected legislatures, and more than 300 million people, a mandate to redefine the most fundamental institution in society. What was at issue here, however, was not due process or equal protection, which our constitution guarantees, but redefining an institution that in five thousand years of human history, has always required sexual complementarity. The decision undermined all notions of federalism, states’ rights, the Constitutional order, and basic democratic practice. The nature of marriage is not mentioned in the Constitution. Deciding its definition is not a power of the federal government. It is left to the states and the people. This is not government by law or democratic process but by judicial decree.

No body of five unelected lawyers, regardless of the status of that body, even the Supreme Court of the United States, should have the power to decide and redefine for a nation the nature and definition of an institution, especially one so unalterably crucial to that society. In Loving vs. Virginia, in 1967, the court properly decided that anti-miscegenation laws were unconstitutional based on the equal protection clause, thus allowing interracial marriage. In that decision, there was no attempt to redefine marriage. It simply removed an unconstitutional impediment to interracial marriage, a violation of the 14th amendment; but it did not alter the nature of marriage nor the requirement for sexual complementarity.

“Gay marriage” is not a “right” but a distortion of a sacred and critical institution, that of marriage. Beyond that, the notion of “gay marriage” is irrational, an oxymoron. Gays cannot marry because they are sexually the same. Whether they love one another and plan to spend the rest of their lives together does not matter. Marriage cannot be twisted, bent, or folded to suit personal preferences. A proper understanding of marriage falls outside the realm of “rights,” for it is a descriptive term, a matter of logic, natural law, and biology. 

Marriage, by definition, is between opposite sexes and must be as such. Sexual complementarity has always been a requirement of marriage, and the reasons are not difficult to fathom. They are rooted in biology, and we are, in the end, biological creatures.

All of our organ systems, digestive, cardiovascular, pulmonary, and so on, are complete within each of us, save one: our reproductive system. This one system requires a mate of the opposite sex to complete. The marital act, indeed, is defined as coitus. Marriage is consummated by coitus, the union of reproductive organs, between a man and woman. That this must be is self-evident. Members of the same sex cannot perform the marital act. They cannot marry. 

From marriage and the marital act comes the world and all that is within it: civilization, history, culture, science, and so on. Without the marital act, there are no children, and the universe of relationships that arise from it: parents, children, aunts, uncles, nieces, nephews, grandparents, and grandchildren; it is through the institution of marriage that total strangers are joined to form new families and relations. It is how the two houses of humanity, male and female, unite to bring children into the world. 

The traditional, married family is the domestic unit upon which society depends; without it society cannot function and will eventually collapse. New life cannot issue from the “union” of individuals of the same sex; it is for this reason that traditional marriage is sanctified and given special legal and moral status. 

To recognize gay marriage (and all other “models” that would follow) would blur the significance of traditional marriage, desanctify and weaken it, and render it just another life style choice. Already a battered and weakened institution, marriage should be bolstered and upheld, privileged and elevated. While gays enjoy the right to free speech, due process, and equal treatment before the law, there is no “right” to transform fundamental institutions to suit elite tastes or enhance gay self-esteem. Society must tolerate gays but is not obligated to endorse their activities or goals.

But leftists support gay marriage. They see society as an oppressive, patriarchal, “heteronormative” oligarchy and seek to tear it down. Traditional married families, furthermore, are autonomous islands that generally perform well enough without government assistance; as such, they thwart the leftist agenda.

Liberalism thrives on social failure and collapse. It feeds on broken families and dysfunction. The destruction of the family has been a long-standing project of the left: the sexual revolution, feminism, gay marriage, and now, of course, transgenderism, are tools to overturn the traditional family and the civil society in general.

But with the Left and its media appendage, it is always about narratives, long-term goals, and the seizing of power. Beneath the smiling patina of the charming news host or glib politician, the façade of tolerance and broad mindedness, leftists pursue their radical agenda with grim single-mindedness, censoriousness, and, when necessary, violence.  Indeed, the homosexual agenda (along with its counterpart, “feminism,” and, more recently, transgenderism) is but another arrow in its quiver by which to undermine society, to fracture and uproot its time-honored institutions, and, particularly, to chip away at that great bulwark against collectivism, the traditional family. 

Obergefell was also an assault not just on Christianity but all faiths, our culture, and on American civilization, which is based on the Judeo-Christian tradition. It was an attack on common sense, federalism, separation of powers, and the constitutional order. We live in a post-constitutional age, under attack by the progressive (regressive) Left that seeks to flip our culture on his head, and to undermine the two great impediments to centralized government, the traditional married family and the church. These are the twin pillars of the civil society, which stand between the individual and the central government.

Obergefell was another salvo of the sexual revolution and its war on the family and Christianity. Abortion, radical feminism, gay marriage and now transgenderism are all of piece.  

But five leftist judges cannot redefine marriage. It remains a union between a man and a woman, an organic institution based on nature and biology that precedes the political order. Its purpose is to civilize the mating process and to provide the best environment for children to grow in. It is about creating new life. It is not about validating the adult relationship of your choice or satisfying elite opinion.  

We must defend traditional marriage. It is time to overturn Obergefell.

Richard Moss, M.D., a surgeon practicing in Jasper, Indiana, was a candidate for Congress in 2016 and 2018. He has written “A Surgeon’s Odyssey” and “Matilda’s Triumph,” available on Contact him at or Richard Moss, M.D. on Facebook, Twitter and Instagram.


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