Conservatives are setting their sights on undoing Obergefell v. Hodges, the 2015 Supreme Court ruling that legalized same-sex marriage nationwide, a push that took center stage at this week’s National Conservatism Conference.
On Wednesday night, that effort was showcased in a panel titled Overturn Obergefell, moderated by First Things editor R. R. Reno and featuring attorney Jeff Shafer, former Trump legal adviser John Eastman, Rabbi Ilan Feldman, and Katy Faust, founder of the child-advocacy nonprofit group Them Before Us.
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The following morning, Rev. Uriesou Brito opened Thursday’s programming with a similar message, calling for marriage to be restored to the union of a biological man and woman and for the landmark case to be overturned.
The renewed attention to Obergefell comes at a moment when the Supreme Court is weighing whether to entertain a long-shot appeal tied to the ruling. The petition was filed by Kim Davis, the former Kentucky clerk who drew national headlines in 2015 for refusing to issue marriage licenses to same-sex couples after the court’s decision.
Against that backdrop, Justice Amy Coney Barrett gave her first televised interview since joining the court, telling CBS News that the law is “not just an opinion poll” and cautioning that the justices “should not be imposing [their] own values on the American people.” Her remarks, released in advance of her new book, were interpreted by many legal observers as a window into how she views the court’s institutional role.
At the panel, Faust called Obergefell a “legal earthquake” that upended the family system. She argued that by redefining marriage around adult desires rather than children’s needs, the ruling opened the door to commercial surrogacy and weakened legal recognition of mothers and fathers.
“Gay marriage did that,” Faust said repeatedly, linking Obergefell to cases involving surrogacy scandals and parental rights disputes. She contended that the ruling eliminated the traditional legal pathways to parenthood, biology, and adoption, and replaced them with “intent-based parenthood,” where adults can claim children through contracts regardless of biology or vetting. Faust urged conservatives to “retake marriage on behalf of the kids” through court challenges, public persuasion, and mobilizing churches.
Other panelists offered different critiques. Jeff Shafer, director of the Hale Institute, argued that Obergefell forced the law to erase the male-female foundation of marriage, which had long shaped family and parenthood statutes.
“Obergefell requires the gender neutralization of indelibly-sexed legal standards,” he said. “The whole point of Obergefell’s audacity was to knock over a cultural pillar that defines and orients a whole legal framework.”
Five years ago, certain mainstream conservative organizations would not have publicly discussed dismantling the law. The prominence of a full panel devoted to the issue reflects how some conservatives are beginning to treat Obergefell the way they once treated Roe v. Wade: A precedent to be challenged over time.
The theme of restoring the family surfaced in other parts of the conference as well. Kevin Roberts, president of the Heritage Foundation, told attendees: “We must meet the long campaign being waged against the family with an equally long, offensive campaign to restore it.”
He added: “And this campaign must begin first and foremost with taking back our own homes. If those of us who claim to fight for the family do not ourselves order our lives around that truth, then every word we speak in its defense will ring hollow.”
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Those calls to “restore the family” contrast with where public opinion has moved over the last decade. A recent survey from Gallup shows broad bipartisan support for same-sex marriage, and in 2022 Congress passed the Respect for Marriage Act with votes from both parties to codify federal protections.
New data from a trio of polling firms earlier this summer found a majority of surveyed Republicans also say they support same-sex marriage. In the poll, 56% of Republicans said they agree that same-sex couples should have the right to marry, while 42% disagreed.
Still, for portions of the conservative movement gathered at NatCon, Obergefell is increasingly viewed not as settled law but as the next major cultural and legal fight. “Marriage is not for us to redefine. It’s God’s plan for the world,” said Rabbi Ilan Feldman, speaking at the Overturn Obergefell panel.
Still, for portions of the conservative movement gathered at NatCon, Obergefell is increasingly viewed not as settled law but as the next major cultural and legal fight. Faust urged conservatives to press forward despite opposition.
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“Conservatives now understand that they will be hated no matter what they do. So they may as well do the right thing,” she said in comments to the Washington Examiner.
“They may as well stand up for children. They may as well fight to restore the most child-friendly institution the world has ever known,” she said, adding that the movement is “tired of being reactive and ready to be proactive” and should now bring “the courage we’ve seen on the transgender issue into the domain of marriage.”