Judge Kavanaugh with daughters, photo of wedding, and photo of a baby

Is Abortion Really THE Issue Regarding Kavanaugh’s Confirmation?

Over the last few weeks we’ve learned that Democrats fear and conservatives hope that Brett Kavanaugh, if confirmed to the U.S. Supreme Court, will provide a fifth vote to overturn Roe v. Wade, prevent a president (Trump, in particular) from being indicted while in office, and limit the deference that courts have been giving to federal agencies that expand government and grow the law by their rule-making power. But it’s what neither of them said is a fear or a hope that concerns me most.

I can’t count the number of times in recent weeks that I’ve heard conservatives, particularly Christian conservatives, say that the issue in regard to his confirmation is abortion, that it is the reason Democrats and political liberals have gone to such lengths to thwart his confirmation.

The Fear Not Heard

What I’ve not heard from Democrats is any concern that Kavanaugh would join the four dissenters in the Obergefell v. Hodges decision to overturn its rejection of the millennia-old understanding that marriage involves a man and a woman.

I suspect the reason we’ve not heard much, if anything, about this possibility, even from those who define humanity in terms of their sexual attractions, is that we’ve not heard much, if anything, about it from Christians, the one group that should have a strong theological reason for wanting to see that decision overturned. Why is that?

I’m tempted to answer by saying some not-so-charitable things about the leadership within the Christian community and the growing embrace of gay theology, but I will assume the best and attribute the silence to the fact that Christians don’t understand what Obergefell really did that makes Roe v. Wade pale by comparison. Yes, Obergefell is worse than Roe.

So, now I will tell those who have not been listening why that is so: Obergefell did not just impose on our nation a new understanding of marriage, it imposed a whole new understanding of what it means to be human, one that spits in the face of what God has said about those whom He created.

Redefining the Image of God, Not Just Marriage

When the Court eliminated the male-female aspect of marriage and de-sexed it, the parties to that marriage necessarily had to be de-sexed, too, at least in the eyes of the law. Humanity itself was reconstituted and recreated in androgynous terms for the purpose of marriage.

As a good friend of mine has said, when the human person is redefined with respect to the societal institution that has always anchored our understanding of what it means to be male and female, we have hit rock bottom when it comes to our social order.

In other words, Obergefell is not the beginning of a slide down some slippery societal slope, as if there remains a question of how much further down the moral abyss our social order will descend; rather, it is a question, as my friend says, of what will fly out from it. Picture what takes place when the blast from the rocket’s engine hits the base of its launching pad.

The speed at which the transgender rights movement has taken off since Obergefell is but one example. And well it should have because, after Obergefell, biological differences are constitutionally and legally meaningless.

Worse yet, because this unbiblical anthropology was cemented into our Constitution, no one will be able to escape its ramifications. In time, not even the institutional Church will escape from it, at least with respect to the preservation of its tax-exempt status.

If you don’t believe me, just ask Bob Jones University what happens to a Christian organization’s tax-exempt status when its religious beliefs about interracial dating, an activity not protected in the Constitution, runs afoul of constitutional rights and the constitution’s understanding of what it means to be human ethnically speaking.

Why Dred Scott and Roe Pale in Comparison to Obergefell’s Understanding of God’s Image

We must put Obergefell in context with other groundbreaking decisions regarding boundaries grounded in our understanding of what it means to be human and made in the image of God.

In Dred Scott, the Court denied the image of God rooted in the fact that He has made “of one blood all nations of men”1, and it substituted for that truth a false boundary between people based on levels of melanin in their skin.

In Roe v. Wade, the Court denied that we were “formed in the womb”2 and that even there we bore the image of God, and it substituted for that truth a false boundary based on the level of development or location between two biologically different and distinct human beings.

Obergefell denied that the distinction between male and female was required by God to fully express His image in us, particularly notable as the one place in the Creation story in which God stopped and said something wasn’t good. This is the most fundamental boundary from which future life springs (Roe) and the diversity of races has sprung (Dred Scott). It was abolished. Entirely.

Obergefell Will Undermine Life and Deny Ethnic Differences

Because of Obergefell, life in the womb will have to be cheapened. Children will increasingly be seen, at least constitutionally speaking, as those whose lives are manufactured artificially simply to meet the emotional and dignitary needs of adults in intrinsically sterile relationships.

And if biological ties are constitutionally insignificant for the purpose of the family, the most fundamental unit of society, then in time differences as to race and ethnicity cannot be constitutionally significant either. Those boundaries, too, are dependent on the continuity of biological reproduction, and besides, if we’re androgynous biologically, then logically that androgyny must be carried through to every part of our human identity. All of what it means to be human must change.

Comparing the Consequences of Denial

With Dred Scott we saw what happened when the image of God was denied; a horrible war tore us apart. Hundreds of thousands of American’s died, more than in any other war.

Since Roe v. Wade, we have seen what happens when the sanctity of life is denied; millions of our fellow Americans have died and been prevented from bringing to our lives the contributions they would have made as God’s image bearers. Now a culture of death, euphemistically known as “death with dignity,” is beginning to envelop us all.

Now, we will see what happens when the law constitutionally discards the image of God reflected in the distinctives of male and female. I suspect it will be much worse.


  1. Acts 17:26. In the Greek, the word translated “one man” in the NASB version of this verse is actually εἷς αἷμα, which literally means “one blood.”
  2. Psalm 139:13

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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