Gay Marriage Isn’t at Risk

In the the majority opinion, Justice Alito wrote:

“The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. … Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right.
Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Justice Kavanaugh wrote in his concurring opinion:

“First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

Justice Thomas would like to overthrow Obergefell, but he stands alone.


Also, law professor and blogger Dale Carpenter writes:

“In a sense the Court is doing two things. It is saying there can be no constitutional right to take what the state regards as life or potential life, and the Court should never have second-guessed or overriden that governmental conclusion. And it is saying that even if abortion fits within a larger sphere of autonomy over one’s reproduction, the state’s interest in life or potential life is enough to justify regulation or outright prohibition.”

7 Comments for “Gay Marriage Isn’t at Risk”

  1. posted by Scott L Doonan on

    Bull- as soon as Alliance find the right case it will be before SCOTUS–when that happens Alito will say that he has no choice but to rule on the merits of the case before him and as such we strike obergefell –y’all s belief in justices willing to lie under oath both amuses and scares the hell out of me.

  2. posted by Kosh III on


    They are lying. They lied about overturning RvW as a precedent they are lying about this.

    I’ve already written my Congresscritter to Impeach the lying liars.

    Meanwhile Trump cultist wants to excute gays
    “We need to hold people for treason, start having some public hearings, and start executing”

  3. posted by Agee on

    The Dobbs opinion says no fewer than four times that Obergefell and the other decisions are not affected. It even expanded the reassurances from the draft leaked in April. And Kavanaugh wrote separately to do the same thing.

    Thomas wrote alone, with no one joining him.

    The fear-mongers/fund-raisers sure know how to play their targets.

  4. posted by Tom Scharbach on

    The logical underpinnings of the Dobbs decision are incoherent. The fact that Justice Thomas is alone among the majority in pointing this out is irrelevant. It was also pointed out in the dissenting opinion, and follows from the history of conservative dissents in “unenumerated rights” cases over the last 50-odd years.

    The majority opinion holds that any right not explicitly enumerated in the Constitution must be “deeply rooted in this Nation’s history and tradition”. That proposition has been articulated in any number of dissents to “unenumerated rights” cases over the years, specifically Griswold, Lawrence and Obergefell.

    In the dissenting opinion, Justices Breyer, Kagan and Sotomayor make clear the implications of the majority opinion:

    The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

    Justice Thomas, however, like Justice Scalia in his Lawrence dissent (in which Scalia argued that Lawrence must, inevitably follow from Lawrence as turned out to be the case), is an honest broker, pointing out that if Roe is unsound, then Obergefell, Lawrence and Griswold are, inevitably unsound, however much the majority Justices try to sing a different song:

    The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, Cite as: 597 U. S. ____ (2022) THOMAS, J., concurring 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.

    For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.

    Justice Thomas is not the only Justice to raise the concern, although he is the only conservative Justice honest enough to lay bare the incoherence of the majority’s opinion.

    And Justice Thomas is right about that — each Obergefell, Lawrence and Griswold rely on the unenumerated rights, all of which have been under attack by conservative legal theorists for years, and none of which are “deeply rooted in this Nation’s history and tradition”.

    That fact, which is also true, was pointed out by Chief Justice Roberts, Justice Alito, Justice Scalia and Justice Thomas in separate Obergefell dissents. This is from Justice Alito’s dissent: “[T]he Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are deeply rooted in this Nation’s history and tradition. And it is beyond dispute that the right to same-sex marriage is not among those rights.” The others (Roberts, Scalia and Thomas) were even more clear in this regard.

    So let me put it to you in another way: If Roe was erroneously decided because it relied on unenumerated rights not “deeply rooted in the nation’s history and tradition”, why aren’t Obergefell, Lawrence and Griswold, rooted in the same unenumerated rights and equally unsupported by the Nation’s history and tradition, not also erroneously decided?

    Justice Alito argues that abortion is somehow a unique case: “[R]ights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life’.” That may be true, but it has no basis in constitutional theory. Justice Thomas, as well as Justices Breyer, Kagan and Sotomayor, have the honesty to point out that Justice Alito’s distinction is a smokescreen, just as Justice Scalia had the honesty to point out that Justice Kennedy’s assurances that Lawrence would not lead to Obergefell was a smokescreen.

    In a nutshell, Justice Alito and the others in the majority are pulling wool over our eyes, trying to make the problem exposed by Justices Thomas, Breyer, Kagan and Sotomayor disappear by asserting that the constitutional principles articulated in the majority opinion don’t apply to cases which they obviously do.

    I don’t know how long it will take before the Court has to decide whether or not to overturn Obergefell. But that day will come, and it is almost certainly going to come out of Texas.

  5. posted by Tom Scharbach on

    Agree: The Dobbs opinion says no fewer than four times that Obergefell and the other decisions are not affected.

    That’s true, and as Justice Thomas pointed out, it is meaningless because it says nothing at all about how the Court will decide when direct challenges to Obergefell, Lawrence and Griswold come before the Court, as the challenges inevitably will.

  6. posted by Jorge on

    “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

    Scalia: Don’t you believe it.

    But Thomas always writes stuff like that in his concurrences.

  7. posted by Tom Scharbach on

    Scalia: Don’t you believe it.

    Exactly, Jorge.

    Griswold and the cases that reason from Griswold asserted that “unenumerated rights” in the penumbra of the 9th and 14th Amendments prohibit the government from regulating some aspect of people’s private lives (contraception, consensual sexual activity, marriage and so on).

    Dobbs holds that such “unenumerated rights” only exist if, only and to the extent that the rights are “deeply rooted in this Nation’s history and tradition”. That knocks the constitutional foundation right out from under Griswold (contraception), Loving (mixed race marriages), Lawrence (sodomy), Obergefell (same-sex marriage) and numerous other decisions in the Griswold line.

    The majority added language to the final decision declining to go beyond abortion and attempting distinguish Dobbs from other decisions in the Griswold line by asserting that abortion was unique because abortion involves destruction of “potential lives”. That is not a distinction of constitutional law and is as muddled as the Roe/Casey attempt to draw a constitutional line at “viability”, and Justice Kennedy’s assurance that Lawrence would not lead to Obergefell. Justice Scalia called out Justice Kennedy on that nonsense in his dissent, and Justice Thomas called out Justice Alito in his defense.

    Just imagine a decision in a decision challenging Obergefell, written by Justice Alito, for example:

    Obergefell found a right to marriage by homosexual couples on the basis of “unenumerated rights” under the penumbra of the 9th and 14th Amendments. As we made clear in Dobbs, such “unenumerated rights” exist if and only if the rights are “deeply rooted in this Nation’s history and tradition”. The right to marriage by homosexual couples has no such history. In fact, the contrary is true, as (long string of quotations from dissents by Alito, Gorsuch, Kavanaugh, Kennedy, Scalia and Thomas, from Obergefell and perhaps other cases) demonstrate beyond question. As a result, we conclude that Obergefell was wrongly decided and that the question of who can and who cannot marry should be decided by the states, charged with this responsibility throughout the history of the nation.

    In the ordinary course, our holding that Obergefell was wrongly decided and without constitutional basis would require us to overturn the decision and return the question of homosexual marriage to the states, to be decided by the people of each state. We do not overrule Obergefell, however, because, unlike Dobbs, Obergefell does not present “unique circumstances” involving destruction of “potential lives”. Accordingly, we hold that Obergefell remains the law of the land.

    That reasoning, in a word, is sophistry. It is a distinction that avoids the constitutional reasoning of the majority in Dobbs, verges on nonsense, and cannot stand, constitutionally. Justice Thomas was right to point that out.

    Stephen has presented us with number of articles from the conservative commentariat assuring us that Obergefell will not be overturned in the future, despite the fact that it no longer has a constitutional leg to stand upon. The assurances hammer away at Justice Alito’s repeated assurances that the Dobbs does not decide the fate of other cases in the Griswold line (as you say, “Scalia: Don’t you believe it.“), and hammer away at the idea that same-sex marriage is now accepted by a majority of Americans, even in the red states, and no legislature would dare to challenge Obergefell.

    I wonder about the second line of reasoning, on three counts:

    (1) About 65-70% of Americans now accept same-sex marriage, according to the most recent polls. That is about the same number of Americans who approve of abortion rights in at least some cases. On what basis does the conservative commentariat distinguish between the two? The standard distinction is that abortion “remains controversial” and same-sex marriage does not. Really? Has the conservative commentariat read Tony Perkins, Franklin Graham and other social conservatives, or looked that the polling among the conservative Christian base of the Republican Party, a base upon which the Republican Party depends?

    (2) I would quietly point out that 30+ states have state-level constitutional amendments in place, all of which ban same-sex marriage and most of which also ban civil unions and other “marriage-like” arrangements. Obergefell is the only reason that the anti-marriage amendments are not in full force and effect at this time, and none (not one) of the states with anti-marriage amendments in place have rescinded those state-level constitutional amendments. In legal terms, it would be a small step for a state to challenge Obergefell in the states with anti-marriage amendments.

    (3) The challenge need not be head on, in any case. Keep in mind that Dobbs did not directly challenge Roe, but asserted instead that the “viability” standard should be reduced to 15 weeks, as I recall. It was Justice Alito and others in the majority that transformed Dobbs from a point-of-viability decision into a decision overturning Roe in its entirety. All a legislature need do to put Obergefell in similar jeopardy is to enact a law eliminating state-level protection for smae-sex marriages in one respect or another, and that challenge would force the issue.

    I have no doubt that Obergefell is going to be challenged, and probably sooner rather than later. When Obergefell is challenged, Justice Alito’s sophistry will be brought into focus, and the Court is going to have to overturn Obergefell or invent another layer of sophistry.

    The conservative commentariat shout as loudly as it likes, but facts are facts and logic is logic.

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