When I stood before the U.S. Supreme Court in 2015 to defend the constitutionality of state marriage laws rooted in the union of one man and one woman, I did so out of conviction, one grounded in centuries of legal tradition and a deep understanding of marriage’s social purpose.
Marriage, as I argued, has always served a vital function: binding children to their biological mothers and fathers whenever possible. The government’s interest in marriage has never been about adult companionship. That is because the state generally has no interest in regulating when human relationships begin or end, whether that be a friendship or a romantic partnership. Marriage is the exception.
Why? Because the state’s interest in marriage has always been about creating a stable environment in which children can know and be raised by the two people who co-created them. That connection—biological, emotional, and societal—is not a private preference, but a public good.
The Supreme Court’s ruling in Obergefell v. Hodges redefined marriage into a genderless institution based primarily on adult desires and feelings. Against the backdrop of a Constitution that said nothing about this subject, the majority held that same-sex couples had a so-called constitutional right to marry, effectively erasing the longstanding understanding of marriage as child-centered. At the time, many marriage advocates warned that this shift would have profound consequences—not only for the institution of marriage, but for children themselves.
Regrettably, those warnings have proven true.
In the years since Obergefell, we’ve witnessed a legal and cultural shift away from the idea that children have a natural right to be raised by their biological mother and father. Marriage is increasingly seen as a contract between any two adults, untethered from procreation or sexual complementarity. Birth certificates have even been revised to remove references to mothers and fathers.
Parenthood is now determined in many jurisdictions by “intent” or contract rather than biology. Marriages are being entered into for a limited number of years, no matter the interests of children. A New York judge has even ruled that individuals involved in a throuple (a relationship between three people rather than two) should have the same legal protections as a married couple with no consideration of children’s best interests.
Most significantly, children are increasingly being brought into the world through practices that intentionally separate them from one or both biological parents, such as anonymous sperm or egg donation and commercial surrogacy. In other words, the law, influenced by Obergefell’s logic, now often prioritizes the desires of adults over the needs of children to know their mother and father.
These were not unforeseen developments. During oral arguments, Justice Alito asked whether redefining marriage would diminish the rationale that marriage exists to connect children with their biological parents. That question went unanswered. I argued that the state has a compelling interest in preserving the definition of marriage as one man and one woman—not to exclude anyone, but to affirm what marriage uniquely provides to society: a structure that recognizes the irreplaceable contributions of both mothers and fathers in their children’s lives.
The United States has paid a steep price for ignoring that truth about marriage. While many cultural impacts are at play, redefining marriage to focus on adult feelings rather than children’s needs has exacerbated several disturbing trends.
First, a historically low marriage rate: An all-time low of 46.8 percent of households were headed by a married couple in 2022. Second, a historically low birth rate: Live births decreased nearly 9 percent from 2014, the year before Obergefell was decided, to 2019, the year before Covid-19 decreased live births even further. Third, young people are increasingly confused about their identity: Americans aged eighteen to twenty-four who identify as transgender increased 422 percent from 2014 to 2023.
Additionally, we are seeing the consequences of intentionally creating people who will never know their biological mother and father. The overwhelming desire to be connected to one’s biological parents is evident in the 70 percent of donor-conceived adults who believe they have been harmed by not knowing the identity of a biological parent. Seventy-seven percent agree that a sperm or egg donor is “half of who I am,” and 86 percent believe that a biological parent’s information belongs to the adult child.
These are not abstract trends; they negatively impact children every day.
A just society must be willing to ask hard questions: not only, “What do adults want?” but, “What do children need?” Modern society frequently focuses on the wrong question. We must confront the reality that children need their mother and father, together, whenever possible.
This does not mean condemning those who raise children in other contexts, such as adoption or single parenthood when necessary. But the law should not be blind to what is optimal for children. Marriage, rightly understood, reflects that truth. It is not merely a symbol of affection or recognition. It is a social covenant that binds together the two halves of a child’s origin and affirms their right to be known and loved by both.
Obergefell may be the law, but it is not the end of the conversation. We must continue to advocate for an understanding of marriage that serves the common good, one that remembers that every child begins with a mother and a father, and that society has an obligation to support that connection wherever possible.
Same-sex marriage proponents promised that a ruling in their favor would not affect anyone else. That promise has been demonstrably false for children and those who have lost jobs, careers, and reputations for supporting marriage between one man and one woman. Let us re-center marriage where it belongs: not in validating adults, but in protecting children.
