Actually, two people of the same sex can marry if, in the words of the majority in Obergefell, marriage is looked at as simply a creation of government-“enacted law and policy.”

In fact, if that’s all marriage is—a word we give to government-approved relationships by which we allocate government benefits—then, as Chief Justice Roberts said in his own Obergefell opinion, there is no reason that marriage can’t involve more people.

Here’s what he wrote:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

But, if marriage is God-given, then civil government lacks the authority to redefine its parameters. In that case, civil government’s only role is to secure the rights and enforce the duties that a man and woman assume when they enter into a marital relationship.

This is what distinguishes the holdings in Obergefell from the decision in Loving v. Virginia, in which the U.S. Supreme Court held unconstitutional a law that made interracial marriage a criminal offense. Ethnicity was never an element of marriage, not even in the Bible,¹ so allowing a man and woman of different ethnicities to marry did not redefine the nature of the marital relation. Ethnicity was added as a constitutive element of marriage by civil government's licensure laws because racial purity had become more important to some people than the couple’s unity in Christ.

If, however, the legal definition of marriage makes the sex of the parties irrelevant, there are lots of other things in regard to this new form of marriage that will have to be redefined in law, because all family-related laws were enacted on the assumption that only a male and female could marry. Those changes will, in return, reconfigure the social order in significant ways.
 

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[1] It is true that, in the Old Covenant, God’s chosen people were not to marry outside the covenant community, but that was not a matter of racial purity, because God “has made from one blood every nation of men to dwell on all the face of the earth” (Acts 17:26, NKJV). Rather, it was a matter of covenantal succession as the people with whom God had chosen to covenant Himself (Deuteronomy 7:6 and 14:2; Psalm 135:4; Psalm 78:37 and 89:3, NKJV). The primacy of this issue carries over into the New Covenant in the command that the two not be “unequally yoked” (2 Corinthians 6:14, NKJV).

To understand the constitutional relationship between birth certificates, transgenderism, and Obergefell, one needs to look at the complaint that in April 2019 initiated a lawsuit against the state over the state's laws governing birth certificates.

Four adults have sued the state alleging that their constitutional rights under the U.S. Constitution are being violated, because, under state law, they are not able to change the sex listed on their birth certificates after “transitioning” as adults.

Here is how the key allegation reads, paragraph 8:

Tennessee’s Birth Certificate Policy . . . violates the United States Constitution’s guarantees of equal dignity¹, equal protection of the laws, fundamental rights of liberty and privacy, freedom of expression, and freedom from compelled speech. These constitutional guarantees protect personal decisions central to individual dignity and personal autonomy², including intimate decisions that define personal identity, such as a person’s gender identity.³

Each of these numbered phrases corresponds to the following numbered sentences in the Obergefell opinion:

1 “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

2 “[L]iberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

3 “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Understand what is happening here. The Court is no longer being asked to look at the words “life, liberty, and property” used in the 14th Amendment and interpret what those words meant and how those words apply to birth certificate laws. It is being asked to “interpret” the words in the U.S. Supreme Court’s opinions. This is what, as a practical matter, elevates Supreme Court opinions to the status of constitutional law.

The plaintiffs do not want the Court to go back to the words in the Constitution, again examine what they were intended to mean and encompass, and then determine how that meaning should apply to the law in question. No, they want the Court to pick up where it left off in its creation of new rights and liberties by using the words in the Obergefell opinion as if they are now the words in the Constitution to judicially expand the Constitution from there.

Sadly, Tennessee’s attorney general & reporter, in defending against this claim, has not insisted that the Court start back with the original meaning of the words in the U.S. Constitution.

That is why Obergefell is so important. Its constitutional reasoning, sloppy as it was, is being and will continue to be used to do things no one every imagined and would never be approved by the people through their representatives.

This is not to say that a state could not choose to enact a law that allows adults to change the sex on their birth certificates as many times as they want and for any reason they want, but it is quite a different thing to say a law to this effect is now required by the U.S. Constitution.

The plaintiffs know the Tennessee General Assembly will not pass the law they want, because it has rejected such attempts in the past. But the word in Obergefell gave them new life, so to speak, to ask the Court to make that change via constitutional interpretation.

Ironically, if the federal district court takes the bait and enjoins enforcement of Tennessee’s existing birth certificate law as unconstitutional, it will have created another “right” that will require a change in Tennessee’s statutes that federal courts will be impotent to force the legislature to enact.

Lastly, if you’ve ever wondered how America’s moral decline seemed to become “constitutionalized,” you have to look no further than what the Court said in Obergefell and how what it said is now being used.

The best way why being a “father” or “mother” must become a status bestowed by law, not a relationship existing by virtue of procreation, is to literally picture marriage as it is understood in Tennessee’s Constitution vis-à-vis marriage as it is understood (currently) under the 14th Amendment.



How can Female 2 ever be treated the same as/equal to Female A or Female 1 with respect to the biological child?

Answer: Female 2 can only have a relationship with the “Donor Child” as a parent if the word “parent” is seen as a legal status bestowed on a person because of certain non-biological considerations such as functions or services provided, not, as in the past, a status naturally arising out of a biological kinship bond with the child through procreation.

But, if Female A has natural rights and Female 2 only has legal rights, then the foundation of the rights of the parties relative to the child born during the marriage are not the same for those in a 14th Amendment same-sex marriage as those in a natural or common law form of marriage. But that does not appear to be an Obergefellian form of equality.

Therefore, since Female 2 can never point to rights arising in nature, the only way for her and her marital partner to be “equal” with Female A and her spouse is for the law to treat the rights of Female A and her spouse as only legal rights, too.

It might be argued that a legislatively-enacted law could say that Female 2 has all the same rights as a natural parent, but that is the law calling equal that which is clearly not, in fact, equal. If the law does not do that, then some same-sex couples will say that the law is denying them rights equal to that of a husband and wife, but the law that denies a same-sex couple the same foundation for parental rights as the husband and wife is not civil law, but the natural law of biological reproduction.

But, because the Supreme Court’s rationale for marriage denies biological realities, we can expect for them to be denied in regard to all else associated with marriage. Thus, for “marriage equality” to produce “parental equality” is for the law to deny the importance of biological procreative relationships and reduce the meaning of parenthood to a set of functions that an adult intends to perform and does perform in a child’s life. That is exactly what advocates of same-sex marriage are now saying.

In “Marriage Equality and the New Parenthood,” published by the Harvard Law Review, professor Douglas NeJaime wrote that same-sex marriage means we need a:

model of parenthood premised on intentional and functional, rather than biological and gendered, concepts of parentage. In this way, rather than affirming traditional norms governing the family, marriage equality and the model of parenthood it signals are transforming parenthood, marriage, and the relationship between them — for all families.¹

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[1] Douglas NeJaime, "Marriage Equality and the New Parenthood." Harvard Law Review 1185, 1187 (March 2016): 129.

Want to know more? Read this article by Michael Hanby of The Federalist.