Obergfell v. Hodges: A decision so rife with logical and factual errors it should be ignored

So, I was reading the Obergfell v. Hodges decision (seen here) for this analysis, it’s an interesting decision, considering that it rips many of the precedents it cites right out of their context and twists them into submission to try to make them fit. So, if you’ve been under a rock for the past few months and haven’t seen the news in the past few days, allow me to recap what has transpired: the Supreme Court of the United States (SCOTUS), handed down their decision in a case that fundementally changes what marriage is supposed to be about and completely devalues it and redefines it.

Now, immediately, my critics will come back with “this is about love”, or some other trite garbage (points that I’ve addressed here, here, and here), but I’m sorry, for me this is not about “love” or any meaningful understanding of the concept, but about freedom. And let’s be honest here folks, if its “gay” it has nothing to do with freedom (just ask Baronelle Stutzman and Melissa Klein). The government, the federal government has just been given the authority to walk straight into your bedroom and can now tell you what to do, and who to do it with (didn’t think about that, did you). The “general welfare” clause of the United States Constitution can now be exploited when society begins to crash because of the anarchy that has just been unleashed on the nation.

Yes, let’s ignore the facts that any non-normative, sexual behavior, outside of a normative,life-long, monogamous, heterosexual relationship has demonstrably bad outcomes not only for those directly involved, but for children that are exposed to it; but let’s just render terms meaningless. Okay, enough bloviating, let’s actually examine the argument of the court.

On page 2 of the decision, which is recounting the “history of marriage” this statement is made,

The history of marriage is one of both continuity and change.

Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

I’m sorry, I don’t see how moving away from certain traditions regarding how marriages were established (through arrangement) or how property was protected (coverature) are relevant to the issue. The fundamentals (man-woman) did not change. This is a non-sequitur. These were cultural issues that were not fundamental to the question. All marriages are still arranged, it’s just that the people who do the arranging have changed, shifting from the parents and families to the individuals, which is why the issue of overture was so important to the other. So far, I’m not being persuaded by the logic of the argument.

Now because of this fallacious reasoning, Justice Kennedy goes on,

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law.

Why were these acts considered “immoral”? It could be argued that it is simply because they are demonstrably destructive to the person on multiple levels, however, when we examine history, we can see that these issues tend to arise not in the course of seeking greater freedom, but in the course of seeking to establish totalitarianism, as can be demonstrated by looking at the force of law that has been brought against those who simply want to be left alone.

Justice Kennedy then proceeds to just make stuff up,

The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.

Hmmm, let’s see,

Amendment 14, Section 1, the “Equal Protection Clause”

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor to deny any person within its jurisdiction the equal protection of the laws.

I don’t see anything in there about “personal choices” or “individual dignity,” or “autonomy” for that matter. We do have to ask the question of how the formulators of the amendment understood what “privileges and immunities” are and how they relate to this issue. The context of the passage of the 14th amendment was to combat the issuance of so-called “Black Codes” that appeared in the South following the Civil War to return those who had once been slaves to a state of subservience. Good intentions that have been twisted countless times, sometimes to benefit the imposition of unjust laws on a populace.

Justice Kennedy then brings up two cases directly relating to the marriage question, Loving v Virginia, and Turner v Safley, in doing research to write this analysis I found some troubling logical issues in a case used to decide Turner (Zablocki v Redhail) that, if taken to their logical conclusion, pose some definite problems. But, given that the most common argument is that the issue of same-sex “marriage” is closely related to interracial marriage more than prisoners wanting to marry, I’ll refer to the Loving case, in particular this passage,

[We] reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio’s ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, [p9] Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. (emphasis added)


I, of course, reject the notion that there is something to the idea of a persons melanin expression has anything to do with one’s humanity. It has been argued that the concept is archaic and even misrepresentative (see here). Is there any substantial difference between a person whose skin is black and a person who is sexually attracted to someone of the same sex? No, because they can be one and the same, so the argument falls apart based on its false premise, that one’s race (how their gene’s express themselves externally) is related to their behavior.

Justice Kennedy goes on to give, “Four principles and traditions [which] demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.

A “right to personal choice regarding marriage”? I would take this to mean that a person has the right to choose whether to marry or not, because that’s the “personal” part of the “choice”. Who I can marry is an element that needs to be defined. When that key element is lost, then anything is truly permissible.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

That is simply incoherent. “[The] right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals”? That’s a tautological statement, it is simply nonsense. Further, what is so important about the number “2” in “two-person union”? What about a bi-sexual? Doesn’t a person who identifies as bi-sexual have the right to join to partners of both sexes?

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.

Can I ask just a simple, biological question here? How do same-sex couples “procreate”? Just think about it. Anyone who has children or has taken a human development class should know the answer to that question. The instant Justice Kennedy brought that into the equation he immediately drew a discriminatory line between same-sex “couples” and opposite-sex couples, and exposed a simple flaw in the argument: no matter how much a same-sex couple loves one another, they cannot create life, they cannot “procreate,” rather they have to go outside of their stated “nature” into another and steal from a different one, and he seems to recognize this problem by stating,

This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

Justice Kennedy, why does precedent protect and privilege those opposite-sex couples who “do not or cannot have children”? It does so because under normal circumstances they could or would have children, therefore the laws should and have been conditioned based on that capacity. More fallacious reasoning on the esteemed justice’s part.

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order.

Uh, yes, absolutely, and why is that Justice Kennedy? It is because opposite-sex marriages have provided the stability in and of themselves through the production, preservation, and education of the next generation of its citizens.

There is no difference between same- and opposite-sex couples with respect to this principle, …

Demonstrably false assertion that has already been demonstrated.

…yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.

Why are opposite-sex couples afforded that “constellation of benefits” you refer to? They receive those benefits because they have something to contribute to society, Justice Kennedy, which I have already discussed.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

The “central meaning of the fundamental right to marry”? Justice Kennedy, you’ve got so many false premises in your argument your conclusion is empty. This is demonstrated in the findings,

By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” (p.15)

I’m going to play the devil’s advocate here and say that the person writing this sentence didn’t ask a few basic questions, such as:

  • What does the word “parent” mean?
  • What does the word “family” mean?
  • What does the word “concord” mean?
  • What does “community” mean?

Just simple questions that needed to be answered. Notice what is implied is that the government defines that structure, not nature. Nature defines the structure. Nature says that a man and a woman are the basic units, and through their joining together that a family is produced and children are raised and communities are formed. Put two women or two men on an island for 80 years and see how the population grows, it doesn’t. However, put a man and a woman on the island, and, barring death or disease, population cannot help but grow.

I could go on, but the sheer idiocy and unreflectiveness and fallaciousness reflected in the conclusions should be obvious and grounds alone for the States to summarily reject the arguments put forward by the courts.



  1. […] As I wrote in my response to the Obergfell decision, I questioned why “two” is so important now that the element that defined what “two” is. In fact, “two” is now a meaningless figure in the question of marriage, and is in fact biased against those who self-indentify as bi-sexual, or those who identify as “poly”. So much for being inclusive. […]

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