Eleven Years After Obergefell, Who Will Speak for the Children? 

America’s semiquincentennial is a fitting occasion to take stock, not only of the institutions the framers built, but of those they inherited and chose, deliberately, to leave intact. Chief among the latter was marriage. The framers did not invent marriage, and they did not presume to redefine it. They received it, as every generation before them had received it, as the institution by which a society answers for its children—binding a mother and a father to the child they create, and binding that child, in turn, to a lineage, a name, and a home. The institution predates the republic; it predates the common law; it predates, for that matter, the Church that sanctified it. And for most of American history, the civil law’s interest in marriage was understood in precisely these terms. The 1996 House Report accompanying the Defense of Marriage Act put the proposition with unembellished clarity: “Government has an interest in marriage because it has an interest in children.” 

Two anniversaries fell within a week of one another this summer. On June 26, the country quietly marked the eleventh anniversary of Obergefell v. Hodges, the 5–4 decision by which a bare majority of the Supreme Court severed that ancient understanding and replaced it with a jurisprudence of adult self-definition. The anniversary passed without fanfare. The Republican Party, which for a generation defended the conjugal definition of marriage, has in the interim retired from the fight; in 2024, it scrubbed “natural marriage” from its platform and substituted a pallid tribute to the “Sanctity of Marriage.” As the midterms approach, party strategists have made their posture explicit: Republicans, one strategist told reporters, “are not going to want to lean into it.” The polling still favors that retreat—but the ground is shifting. New Gallup data show support for same-sex marriage has fallen from 71 percent at its peak to 65 percent in 2026, the first sustained decline after decades of growth. A week later, on the Fourth of July, the republic marked its two hundred fiftieth. The juxtaposition is instructive. A nation founded on the proposition that rights are unalienable and endowed by a Creator who made us male and female finds itself, on its semiquincentennial, governed in part by a doctrine that treats the complementarity of mother and father as legally optional. The framers would not have recognized the arrangement, and they would not have approved of it. We owe them, at a minimum, the courtesy of noticing. 

Yet public opinion is not the measure of whether a ruling was just, and it is not the measure of whether the warnings its dissenters issued have come to pass. Chief Justice John Roberts, reading his dissent from the bench for the first time in his tenure, asked of the five justices in the majority a question that has not aged: “Just who do we think we are?” Justice Samuel Alito predicted that those who continued to hold the older view of marriage would be “labeled as bigots and treated as such by governments, employers, and schools.” Justice Clarence Thomas warned that civil marriage and religious marriage would inevitably be pressed into open conflict. Eleven years on, the record is in. 

Consider, first, the institution itself. Obergefell was offered, in part, as a rescue of marriage—a widening of its doors that would, we were assured, strengthen the broader culture. Instead, the American marriage rate has continued, and in some years accelerated, its retreat, falling from roughly 6.9 per 1,000 people in 2015 to 6.1 in 2023, with a pandemic-era collapse to 5.1—the lowest rate in the 156 years the federal government has kept the figure, beneath even the Civil War and the Great Depression. The general fertility rate, meanwhile, has fallen to roughly 1.6 births per woman, a historic low, well below the 2.1 threshold required to sustain a population, and still sliding in the provisional 2025 data. Only a single state—South Dakota—remains above replacement. 

The 2026 Family Structure Index, produced by the Institute for Family Studies and the Center for Christian Virtue, renders the composite picture in a single number. Benchmarked against the national family conditions of the year 2000 at a score of 100, the Index has fallen to 87.3—a measurable thirteen-point erosion, across the span of the Obergefell decade, in the share of prime-age adults married, the share of teens living with married parents, and the total fertility rate. The damage is not evenly distributed. Harvard economist Raj Chetty and his collaborators at Opportunity Insights have identified the share of two-parent families in a community as the single strongest community-level predictor of whether poor children will rise out of poverty in adulthood. Upward mobility itself, by Chetty’s measure, has been cut nearly in half in two generations: roughly nine in ten children born in the 1940s out-earned their parents, compared to barely five in ten of those born in the 1980s. A civilization that marries less and bears fewer children, and whose children increasingly do not rise, is not a civilization that has been strengthened by the redefinition of the institution from which children proceed. 

The deeper cost of Obergefell, however, is not demographic but conceptual, and it is absorbed almost entirely by children. When the civil law makes husbands and wives optional in marriage, it must, for the sake of its own internal consistency, make mothers and fathers optional in parenthood. That is not just polemic. Statutes have been scrubbed of the words “mother” and “father.” Birth certificates have been rewritten to list two women or two men as a child’s parents and, as a matter of record, to exclude the biological mother or father the child in fact has. “Infertility” has been redefined in insurance codes so that couples who are not infertile but are childless by nature of their pairing may be underwritten into the acquisition of children through third-party reproduction. A largely unregulated domestic surrogacy industry has grown in the years since the decision, in which children are conceived, gestated, and transferred under commercial contracts—without the screening that governs adoption, without a cap on the number of children produced, and without, in many jurisdictions, any requirement that the contracting adults be related to the child at all. 

The architecture is thus inverted. Adoption, the traditional legal bridge to parenthood outside biology, treats the child as the client, the adult as the applicant, and the child’s best interest as the governing standard. The post-Obergefell regime of contractual parenthood reverses each term: the adult becomes the client, the child becomes the deliverable, and the governing standard becomes the precise demand of the paying party. This is not an incidental consequence of a rights-expansion. It is the necessary cost of pretending, in law, that a child does not have, or does not need, the mother and father he or she in fact has. When parenthood is reduced to money and contracts, the child loses the protections that biology and adoption together supply. As a result, the child becomes an object to be acquired rather than a person with dignity and rights. 

Consider, second, the religious liberty the Obergefell majority airily dispatched with a single line about the First Amendment’s guarantee that believers may “advocate” their views. In the eleven years since, the Supreme Court has been required to return, and return again, to rescue ordinary citizens the majority had promised would not be harmed: Jack Phillips, the Colorado baker, in Masterpiece Cakeshop; Lorie Smith, the Colorado web designer, in 303 Creative; Catholic Social Services, stripped of its Philadelphia foster-care contract in Fulton. In each case, a state or municipal authority used the post-Obergefell legal environment to do precisely what Justice Alito had warned of: treat ordinary believers as the functional equivalent of segregationists. A constitutional settlement in which the Court must, one case at a time, protect its citizens from their own governments is an unresolved quarrel. 

Defenders of the decision will answer, reasonably, that same-sex couples now enjoy stable, legally secure unions, and that the sky has not fallen. The first is true and worth acknowledging. The second is a low bar for a ruling that overrode the democratic judgment of more than thirty states and restructured the civil institution most directly responsible for the protection of children. The serious question in 2015 was never whether gay Americans were owed dignity; of course, they were and are. The serious question was whether a child’s interest in her own mother and father could survive a legal regime constructed on the premise that neither is essential. Eleven years later, the honest answer—in the CDC’s vital statistics, in the Family Structure Index, in Chetty’s mobility data, and in the steady docket of religious-liberty cases—is that it has not. 

And so, on the eleventh anniversary of the decision, a proposition worth speaking aloud, though neither major party is willing to speak it, is this: equality for adults should not require inequality for children. A republic that marries less, bears fewer children, watches its composite family score fall more than a tenth in a single generation, hauls its bakers and its nuns before civil-rights commissions, and reduces parenthood to a commercial contract is not a republic that has grown more just. It has grown more quiet about what it has traded away. The framers who, 250 years ago this summer, pledged their lives, fortunes, and sacred honor to a new order of the ages did not regard the protection of children, or the preservation of the natural family, as a private preference to be overruled by five justices on a Friday in June. They regarded it as a public good, and so should we.  

The work, eleven years in, begins with honesty; the admission that Obergefell was not a neutral expansion of rights but a substitution of one set of duties for another, and that the duties it displaced were owed chiefly to children. From honesty, the path proceeds to correction: the patient construction, through state legislatures and the cases they will generate, of the vehicle by which the Court that gave us Obergefell may, in the fullness of time, be asked to reconsider it. That work will not be accomplished tomorrow, and it will not be accomplished by a political party that has decided the question is impolitic. But neither will it be accomplished by our continued silence. Someone, on the eleventh anniversary of the decision, ought to say plainly what the vital statistics, the dockets, and the birth certificates have been telling us for a decade: equality for adults should not require inequality for children, and a republic that has arranged its civil law on the opposite premise has a wrong to set right. 

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