First Roe, Next Obergefell?

Last week’s emergency post on the Dobbs v. Jackson leaked draft gave PPFA is highest weekly readership of the year, so I’m here to give the people more of what they want.

As I noted in that post, both the ruling itself and the fact that there was a leak are each really big deals and deserve attention from the media and our lawmakers, although depending on one’s partisanship they’ve chosen to emphasize one or the other. I also discussed the potential political implications of Roe v. Wade getting overturned, including, perhaps, a badly needed adrenaline boost into the arm of Democratic Senate candidates.

Today, however, I want to speculate about where else this conservative-leaning Supreme Court might make itself felt. There’s one prior SCOTUS case in particular that might be in its crosshairs: 2015’s Obergefell v. Hodges, which legalized same-sex marriage coast to coast.

If the Court applies the same logic to Obergefell as it did Roe, I’m not sure how long the precedent will last. To best understand why, today I want to answer the following questions:

1. What was Obergefell v. Hodges?
2. How might Justice Alito’s leaked Dobbs reasoning relate to Obergefell?
3. Would this Supreme Court actually act on this reasoning if a case challenged Obergefell?
4. What are the best pro-Roe and –Obergefell legal arguments?
5. And what are the political implications of a threatened Obergefell?

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1. What was Obergefell v. Hodges?

Same-sex marriage is a recent practice in the United States. As late as the 1990s, the Defense of Marriage Act (DOMA) passed through Congress with large majorities in both chambers — including a majority of Democrats. It said that marriage is between a man and a woman, that the federal government would not recognize same-sex marriage, and that a state was permitted to ignore same-sex marriage licenses from outside its jurisdiction.

It wasn’t until 2004 — less than two decades ago! — that the first US state legalized same-sex marriage: liberal Massachusetts. A few years later, other states began joining it, mostly in Democratic-leaning states.

Despite this state-by-state success, the federal government, still operating under DOMA, did not recognize same-sex marriage. The law came under judicial scrutiny with the case United States v. Windsor (2013). In 2009, Edith Windsor’s wife, Thea C. Spyer, died. Windsor and Spyer had been married in Canada and then moved to New York, who by then recognized their marriage. When Spyer died, Windsor was hoping to enjoy the benefits of spousal exemptions from federal estate taxes, but since the federal government still did not recognize same-sex marriage, she had to pay $350,000. She sued the federal government, claiming a violation of equal protection prescribed by the Due Process Clause of the Fifth Amendment.

Windsor won the case in a narrow 5-4 decision. Perennial swing Justice Anthony Kennedy voted with the liberal justices and was tabbed to write the majority decision. He argued that Section 3 of DOMA — the part that emphasized the federal government’s non-recognition of same-sex marriage — did not provide “equal dignity [to] same-sex marriages” and that parts of the law acted “as a deprivation of the liberty of the person protected by the Fifth Amendment.” Therefore, Section 3 of DOMA was struck down.

Still, despite Windsor’s win overturning Section 3 and forcing the federal government to recognize same-sex marriages, individual states still could deny such recognition, a protection covered under Section 2 of DOMA and not overturned by the Court.

Enter Obergefell v. Hodges.

James Obergefell and his partner, John Arthur, lived in Ohio. As the two men monitored Windsor’s victory in June of 2013, Arthur was losing a fight against ALS. Two weeks after the decision, the inspired couple flew from Ohio, where same-sex marriage was not recognized, to Maryland, where it was. They got off the plane, got married, then flew home to Ohio.

Arthur died in October. Despite their marriage in Maryland, Ohio did not recognize Obergefell as the surviving spouse on the death certificate. Obergefell sued the state. Richard Hodges, as the Director of the Ohio Department of Public Health, was tabbed as the lead defendant.

The case wound its way to the Supreme Court by 2015, where Obergefell won. Justice Kennedy, again siding with the liberal justices for a slim 5-4 majority, wrote that “the right to marry is a fundamental right inherent in the liberty of the person.” The majority cited the Due Process and Equal Protection clauses of the Fourteenth Amendment, which mandated that every state must provide due process and equal protection under the law to its citizens. The Court instructed states to both recognize out-of-state same-sex marriage licenses and grant licenses in their own state as well. Same-sex marriage has since been protected coast to coast.

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2. How might Justice Alito’s leaked Dobbs reasoning relate to Obergefell?

As discussed last week, the central parts of the majority’s reasoning in Dobbs is that A) Roe was wrong to call abortion a Constitutional right; B) abortion rights aren’t “deeply rooted in this nation’s history”; and therefore, C) abortion is a question that should be left to the states to decide.

To best understand why Dobbs might set up overturning Obergefell, we first want to understand why the Dobbs decision, once official, overturns Roe. Recall from my March series on abortion that a key precedent used in Roe was Griswold v. Connecticut from eight years earlier. Estelle Griswold sued to overturn a Connecticut law prohibiting contraception, and the Court sided with her after establishing we have a right to privacy despite the Constitution never expressly saying we had one. The Court reasoned its way there by combining elements of the First, Third, Fourth, and Fifth amendments to show that our Constitutional framers intended us to have a right to privacy even if they never explicitly stated it. Meanwhile, the Ninth Amendment says we retain certain “unenumerated rights” — that is, rights not written down in the Bill of Rights. In other words, just because a right wasn’t written doesn’t mean we don’t have it. In Griswold, the Court determined a right to privacy is one such right.

Once the right to privacy was established as an implied right, the Roe court used it to argue that a woman and her doctor could privately make an abortion decision if it was early enough in the pregnancy. Further, through the Fourteenth Amendment’s Due Process clause, no state could restrict this right. In sum, the implied right to privacy made possible the implied right to an abortion.

As we learned last week, however, as easily as one can find “implied” rights, another can disagree. This week, we learned that Justice Alito and the conservative majority determined that piling one implied right on top of another was stretching unenumerated rights too far, and that the Due Process clause of the Fourteenth Amendment should therefore not bind the states to observing that right. This Court, if the leaked ruling holds, has determined states should be able to decide their own abortion laws.

We have to wonder, then: if this Court disagrees with one implied right, what other implied, unenumerated rights might fall next? What other rights not mentioned in the Constitution will the Court determine should be left to the states to decide?

The right to marry an adult of the same sex, perhaps?

3. Would this Supreme Court actually act on this reasoning?

I’ve seen a lot of commentary that anyone worried about the Court overturning Obergefell is being irrational and getting swept up in the emotions of the last week. (You know… women, amiright?) I’m not so sure.

First, consider the sheer age of each precedent. This January, Roe entered its 50th year on the books. Obergefell hasn’t even been around for seven. Roe felt ingrained into American society, culture, and politics. During oral arguments, Justice Elena Kagan emphasized the “reliance” Americans have on access to legal abortion. Same-sex marriage, however, is far younger than abortion is, and, as a parent and a husband, I can say having a child was a lot more life-altering than the marriage that preceded it.

Second, same-sex marriage’s popularity and acceptance does not protect Obergefell. True, whereas abortion has remained a divisive political issue since Roe, same-sex marriage has grown more accepted by the American people once it was dropped from political discourse in the years since Windsor and Obergefell. Last year, Gallup recorded a record high of 70% support for it.

On the other hand, support for Roe is nearly that high, but that did not deter this Supreme Court majority. To be fair, the Court isn’t supposed to care about popularity. Only our House of Representatives was created to reflect the will of the people. The Senate was created to represent the desires of the states, the presidency was created to represent the interests of the nation, and the federal courts are meant to apply the meaning of the Constitution.

This Court clearly used its insulation when it voted against Roe despite about two-thirds of Americans supporting the precedent. The SCOTUS majority simply doesn’t care about what’s popular, and so that alone is a poor defense of Obergefell‘s safety.

What’s more, we should keep in mind that the 70% of the country that supports same-sex is not evenly distributed. Support for same-sex marriage is sky high in blue areas of the country, but red areas lag behind. A handful of states still don’t have majority support for it.

This is important for the same reason Mississippi’s opposition to abortion is important. All it takes is one state to challenge same-sex marriage up to the Supreme Court, and its advocates will absolutely point to Dobbs and ask the Court to apply the same reasoning. SCOTUS will have painted itself into a corner and some justices will vote to overturn Obergefell, either because they wish to maintain constitutional consistency or because they are truly opposed to same-sex marriage — or both.

Some states have laws on the books banning same-sex marriage and/or same-sex unions, and some have laws that don’t recognize out-of-state unions. These statutes are nullified by Obergefell, but if the case were to be overturned, these bans would return until the legislature acts, not unlike the abortion trigger laws getting so much attention these days. I’m skeptical Republican legislatures and governors would move quickly to reverse these laws, especially after a hypothetical high-profile Supreme Court case allows religious conservatives and right-leaning media to re-organize opposition to same-sex marriage. I suspect an anti-Obergefell groundswell is waiting for Dobbs to go official. I’ve already seen conservative crusader Ben Shapiro opine that, “If we had a Supreme Court worth its salt, they would overturn Obergefell.”

A compelling argument that the Court won’t use Dobbs to overturn Obergefell comes from citing Justice Alito’s own words in the leaked draft. He was precise, calling abortion rights “fundamentally different” from others established in previous rulings involving “intimate sexual relations, contraception and marriage.” Alito assures us that precedents like Griswold, which established a right to privacy and access to contraception, and Loving v. Virginia (1967), which established a right to interracial marriage, are safe.

“Nothing in this opinion should be understood to cast doubts on precedents that do not concern abortion,” says Alito. If this is true, we are overreacting.

It’s reasonable to speculate, however, that this assurance from Alito is merely some sugar to help the medicine go down. Although Alito clarifies that Dobbs isn’t overturning anything else outside of the abortion rulings Roe and Casey, particularly the precedents that were used in the Roe decision, the question is whether we can divine future rulings based on the majority’s analysis.

Let’s first keep in mind that Alito engineers his own escape hatch for future rulings. Alito’s majority decision is protective of precedents before Roe, but remember that Obergefell comes after Roe. As for whether Alito and the conservative majority will use that escape hatch, we should study their record. We can start by looking back at who dissented in Windsor and Obergefell: current justices Roberts, Thomas, and Alito and the late Antonin Scalia.

Scalia’s Windsor dissent, signed on to by Justice Thomas, felt that, “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter.” Since “the Constitution does not guarantee the right to enter into a same-sex marriage,” then states should get to make their own determination. Justice Alito wrote a separate dissent in Windsor, but he similarly argued that, “Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law.”

Two years later, in his Obergefell dissent, Alito targeted the “implied” rights argument he’d later shoot down in Dobbs, even using the “deeply rooted” language to which he’d return. Quoting from an earlier Supreme Court case (1997’s Washington v. Glucksberg), he argued that “our precedents have required that implied fundamental rights be ‘objectively, deeply rooted in this Nation’s history and tradition.'”

Thomas and Alito’s dissents in Windsor and Obergefell quite clearly line up with their Dobbs v. Jackson reasoning, only now they’re not dissenters at all — they’re in the majority.

Even after Obergefell, Thomas and Alito re-conveyed their distaste for it. Remember that Rowan County, Kentucky clerk Kim Davis? Shortly after Obergefell, Davis cited her religious objection (and later “God’s authority”) when refusing to grant marriage certificates to same-sex couples — and everyone else — who applied for them. She faced a lawsuit, Miller v. Davis, and Eastern Kentucky’s district court sided against her, instructing Davis to resume issuing marriage licenses.

Appeals to the circuit court and Supreme Court failed, but when the Supreme Court weighed in, Thomas and Alito used the opportunity to criticize Obergefell. Thomas, joined by Alito, argued the case has “ruinous consequences for religious liberty,” and that it picked a “novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”

A problem only it can fix!

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To this humble writer, that certainly sounds like we have some justices looking to overturn Obergefell.

Although Thomas and Alito are only two justices, Dobbs teaches us that POST-Obergefell justices Gorsuch, Kavanaugh, and Barrett appear to see states’ rights in the same way. I think we can guess how they would vote on a similar case in the future.

That leaves two questions:

4. What are the best pro-Roe and –Obergefell legal arguments? In other words, how might advocates of abortion and marriage choice use the judicial system to defend these practices?

And 5. Like last week, what are the political implications of all this? If the courts are a dead-end for the pro-choice and marriage equality crowd, what political options are available to Democrats?

But you’ve read enough today. If you’re interested in answers to those questions, please head over to today’s Presidential Politics for America’s podcast episode, available on Apple, Spotify, and that link to Anchor.

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Today’s featured image was taken from Wikimedia Commons and author jordanuhl7.