When the U.S. Supreme Court begins a discussion of the U.S. Constitution with an assertion that individuals have the liberty to define and express their identity, all values and meaning for our lives together, as a society, are now up for grabs.

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.

But that’s precisely how the U.S. Supreme Court began its opinion in 2015 in the case known as Obergefell v. Hodges. The Court said the U.S. Constitution now prohibits state statutes from licensing marriage on the belief that marriage is a relationship between a man and a woman.
In other words, the “liberty” of individuals to define the nature of the marital relationship according to their personal understanding of it not only trumped what the whole of the people in Tennessee had said it was for our state in our state constitution, but trumped for our entire nation the millennia-old understanding that a marriage did not exist unless both biological sexes were parties to it.

Where does this “liberty” stop? Where will it end? What will it lead to? Who knows?

One consequence of this new understanding of liberty surfaced in April 2019 when Governor Lee was sued because the state law does not allow four grown adults to change their sex on their birth certificates—a document recording historical events. On what basis could such a claim be made? Obergefell v. Hodges.

“Liberty” now seems to mean that a child has two “birth mothers.” Tennessee is already recording birth certificates that show a child has two mothers? Why lie to the child? Because five days after the Obergefell decision, a lawyer in the Tennessee Department of Health said to.

Since Obergefell, the office of the state’s attorney general has submitted a brief to a state court in which it said “’male and female contracting parties’ includes the masculine, feminine, and neuter genders for each term.” In other words, male and female are interchangeable terms in our state’s statutes. That kind of argument neuters human beings in our state’s laws.
In February 2019, the U.S. Court of Appeals for the 10th Circuit cited Obergefell v. Hodges in support of the proposition that a city violated the U.S. Constitution by enacting an ordinance prohibiting only women from exposing their nipples in public. You read that correctly.

Will you have any say in things like that as a citizen, as a voter? Absolutely not!

The “lawful realm” in which one person’s “liberty” may overrule the laws made by the whole of our society for the whole of society is now strictly up to the United States Supreme Court. After all, the Court now defines “liberty” for all of us—based on how one person may want to “define” and “identify” himself or herself.

Right before our eyes, the United States Supreme Court grabbed for itself the constitutional power to re-order our entire society—including here in Tennessee—according to its image.

Some issues to consider from the obergefell ruling.


What makes you think two people of the same sex can’t marry? People used to say the same thing about interracial marriage, too.

Short Answer: Two people of the same sex can marry if you believe certain things about the origin and nature of marriage. In fact, three or more people can marry and even all be married to each other (polyandry). A different belief about marriage was used to justify interracial marriage.

Expand Answer

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.

[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).

Birth Certificates

What do Obergefell and same-sex marriage have to do with a “right” to change one’s sex on a birth certificate?

Short Answer: It shouldn’t, but lawyers are now telling the Court that certain words, phrases, and ideas in the opinion used by the Obergefell majority to justify their judgment in that case justify judgments holding other state laws unconstitutional.

Expand Answer

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.

Parental Rights

What makes you think Obergefell and same-sex marriage will undermine my parental rights as my child’s mother or father?

Short Answer: Because it is impossible for one party in a same-sex relationship to have a biological relationship to a child conceived during the marriage by the other party via a sperm donor or surrogate, the party having no biological relationship cannot be the parent of that child in any biological sense. Thus, for a same-sex couple to have all the same rights as a male and female couple relative to children born during the marriage, “parental rights” cannot rest strictly on rights that arise by nature. For there to be equality, the rights of all parents must be viewed strictly as legal rights only.

Expand Answer

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.

GGM Chart 1

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

[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.

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