Real, Not Rhetorical: Children’s Rights as the Strongest Constitutional Defense of Obergefell Against Religious-Liberty Challenges

Authors

• Tanya Washington

Publication Date

5-7-2026

Document Type

Article

Abstract

Justice Kennedy’s decision to center adults’ rights in the Obergefell majority opinion—despite his awareness of children’s legal vulnerabilities—created space for Justice Thomas, in his Davis statement, to ignore children altogether and to reframe the constitutional question as a clash between adults’ rights: the right to marry and to be free from discrimination versus the right to exercise one’s religious beliefs and to refuse to engage in conduct that abrogate those beliefs. This distorted constitutional framing eclipses entirely the rights of children in same-sex families and the concrete harms they will face if their parents are barred from marrying—harms that provide a compelling justification for overriding Davis’s asserted religious objections and liberty interests. Had Obergefell articulated the harm to children more fully, this Article contends, the decision might be less vulnerable to being overturned, because children’s rights would be better positioned to operate as a constitutional check on Davis’s religious-liberty claims.

The Court’s denial of certiorari in Davis offers Obergefell only a temporary reprieve; yet, as this piece underscores, the current political and jurisprudential landscape forecasts renewed efforts to overturn the epochal ruling. In the face of persistent and coordinated challenges, defenders of Obergefell should foreground and fully articulate the rights of children in their same-sex families as foundational to the constitutionality of marriage equality. Although children’s rights remain undertheorized and underdeveloped in Supreme Court jurisprudence, their existence has been repeatedly acknowledged by the Court, particularly in the familial context. Children’s unassailable rights provide the compelling interest that justifies limiting religious-liberty claims when those claims threaten the constellation of constitutional protections and material benefits children derive from their families and filial relationships—protections the law withholds when it prohibits their parents from marrying.

Recommended Citation

Washington, Tanya (2026) "Real, Not Rhetorical: Children’s Rights as the Strongest Constitutional Defense of Obergefell Against Religious-Liberty Challenges," Mercer Law Review: Vol. 77: No. 5, Article 4.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol77/iss5/4