From Roe to Obergefell, Part II: Protecting Marriage Equality

In my last post, I considered the possibility that Justice Samuel Alito’s leaked Dobbs v. Jackson draft might signal a threat to other judicial precedents when future cases arrive at the Court. Focusing on Obergefell v. Hodges‘s protection of same-sex marriage, I answered the first three of five related 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?

I concluded that federally protected same-sex marriage is indeed vulnerable to a strong challenge by conservatives who want to use Dobbs as a turning point. I’d like to now pivot to how liberals might react to the loss of Roe and potential challenge to Obergefell. My final two questions are:

• 4. What are the best pro-Roe and –Obergefell legal arguments?
• 5. And what are the political implications of a threatened Obergefell?

So let’s get to it. (A lot of what follows will lack context without Part I, so go read that first.)

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4. What are the best pro-Roe and –Obergefell legal arguments?

It’s important to separate political desires from constitutionality. The former doesn’t win in court, but understanding the latter just might. Merely wanting something to be a right is not how the law handles things, nor should it. If we all chose to identify our own rights, we’d have so many interpretations of it that some rights would infringe on others. We also don’t decide these things by polling or majority vote, as that could lead to considerable instability in law.

Instead, working inside of our legal framework is the sensible approach (or so goes the argument of boring pragmatists like me), and so supporters of Roe and Obergefell, rather than making a case based around emotions or mantras, should grapple with the legal arguments made by their opponents.

With that in mind, it’s worth acknowledging that the Dobbs majority has made a cogent point, as did the Roe and Obergefell dissents: abortion and same-sex marriage are not in the Constitution, nor is there federal legislation passed to protect those practices. That being so, the Tenth Amendment feels applicable: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” From that amendment alone, it does appear the states should get to decide.

Beyond the lack of explicit Constitutional text regarding abortion, Justice Alito, with his originalist judicial philosophy, made the additional point in his Dobbs draft that abortion also wasn’t protected by any state constitutions or existing statutes at the founding or for much of American history. This dearth of statutory support includes the historical context of the Fourteenth Amendment of 1868, which, alongside the newfound right to privacy from Griswold, was the basis of Roe v. Wade ensuring abortion rights in every state.

Alito therefore argues in Dobbs that abortion, in addition to not being mentioned in the Constitution, is also not “deeply rooted in this Nation’s history and tradition.” In concert, these two facts pointed Alito and the majority to kick the issue to the states to decide for themselves rather than nine robed judges from Washington telling the states what they must allow.

As noted in Part I, this line of reasoning should also make us think that not only is a judicial challenge to Obergefell inevitable, but Alito and this majority would be receptive to that challenge. Like abortion, same-sex marriage is neither in the Constitution nor is it “deeply rooted” in our history, including during the ratification of the Fourteenth Amendment. If the same logic is applied, I don’t see how Obergefell survives.

And yet, smart jurists, especially more liberal ones, disagree with this seemingly black-and-white logic. After all, prior Courts have found sufficient cause to protect abortion in Roe v. Wade and Planned Parenthood v. Casey and same-sex marriage in U.S. v. Windsor and Obergefell v. Hodges. What did those majorities see in those cases, and how can that help guide renewed debates over these divisive issues?

Reasonable rebuttals can be offered to Alito’s central Constitutional and originalist arguments. On Constitutionality, advocates for Roe and Obergefell could raise the Ninth Amendment to combat the Tenth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, we have rights not written down.

If one interprets the Tenth Amendment as sending anything not written in the Constitution to the states, then that almost entirely undermines the Ninth Amendment, the purpose of which is to retain rights not written. It has often fallen to the Court to determine what some of those unenumerated rights are, as it did in Griswold v. Connecticut with the right to privacy and contraception, Loving v. Virginia with the right to interracial marriage, Roe with the right to an abortion, and then Obergefell with the right to a same-sex marriage. And once the Supreme Court says something is a right all Americans have, it is so.

Indeed, a pattern of American history is the expansion of rights over time, including securing equal rights for the formerly oppressed and liberalizing voting rights for the formerly disenfranchised. It’s rare to establish a previously unwritten right only to take it away. And yet, with Dobbs, a half century into Roe‘s precedent, that’s precisely what was done.

Another key component of Alito’s argument is that abortion wasn’t “deeply rooted” in our nation’s history. This argument should trouble all of us.

I assure you that, on balance, I’m quite proud of our country’s history. I think we’re a phenomenally successful country, one with aspirational values that has created a lot of good in this world. I also admire the Constitution, now the longest running governing document in the world, a stability made possible by its separation of powers, difficult amendment process, and check on the majority.

I don’t think, however, that our history is perfect, and I’m highly skeptical of those who either handwave our past mistakes or ignore their effects. Fair enough, abortion is not mentioned in the Constitution, but why is that? One reason is that during the eighteenth century, abortion’s legality before “quickening” was covered under common law, not civil or statutory laws. That was a comfortable place for it, as it wasn’t exactly a topic easily discussed in the public sphere. There was no need or desire to codify the practice into constitutions, whether national or state.

Relevantly, those most uncomfortable talking about it were men, which sets up another explanation for abortion’s lack of text in the Constitution. Not a single woman was among the 55 delegates in attendance at the Constitutional Convention. Women were not in the room writing the document, nor were there women in ratifying conventions during the debate over whether the document was acceptable, nor were there women in state legislatures or court rooms making a case for women’s issues, nor were there women drafting the Bill of Rights.

Instead, men locked in those words. Many of them were excellent men, of course, but their perspectives were limited. When Justice Alito looks at the “deep roots” of our history for guidance on how to rule today, he is scanning a document written by those limited perspectives. That’s not to disparage the many brilliant pieces of the Constitution; it’s only to say that a lack of text might stem from a lack of voices.

Without women or homosexuals advocating for their respective demographics, should the Constitution’s initial myopia continue to blind our current Court? Further, is not the Ninth Amendment part of the framers’ brilliance, allowing later courts to determine new rights our founders hadn’t considered important enough to yet write down?

These rebuttals are certainly limited — perhaps even weak, particularly in the eyes of modern conservatives. In Toxel v. Granville (2000), the late Justice Antonin Scalia proposed that the Ninth Amendment’s “refusal to ‘deny or disparage’ other rights is far removed from affirming anyone of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” In other words, judges don’t necessarily get to invent rights that the government must then enforce.

Scalia, a textualist, would prefer the political branches, not his fellow justices, pass laws. In fact, in U.S. v. Windsor, Scalia suggested that same-sex marriage would one day have been protected as a result of the people pushing their elected branches to do so, which in time would have happened with much less divisiveness than a Court decision would create. By the court injecting itself into and deciding the debate, Scalia believed the Court “cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.”

Of course, we must always be wary of the wisdom of the people. It feels banal, at this point, to remind ourselves that we’re not a pure democracy — and for good reason. Both our country and our 50 states are republics, with branches of government tasked with both representing the consent of the governed and the rule of law. Our framers were concerned with protecting the rights of citizens against the will of the majority. Just because a majority of citizens in a state think a right should be taken away doesn’t mean it should.

Nevertheless, Scalia, were he alive today, would say Dobbs was the natural response to Roe, and whatever future case challenges Obergefell will be its natural response as well. Since Roe and Obergefell took the more aggressive judicial route, here we are, still fighting over it, with the rights to abortion and same-sex marriage as fragile as they have been in years.

With that in mind, how might liberals, facing an unfriendly Court, use the political arena to advance their cause?

5. What are the political implications of all this?

Democrats are being goaded, and I think they’re about to turn desperate. They’ve won the popular vote in seven of the last eight presidential elections (embarrassing for John Kerry), and it’s presidents who appoint justices. And yet, despite winning the popular vote in all but one presidential election of the last 30 years — a period during which eight of the current nine justices have been appointed — only three of the nine current justices are liberal.

How is that possible? Well, most perennially, conservatives have outsized sway over judicial appointments. I once wrote a piece called The Rural Takeover of Washington that showed how rural voters punch above their weight in the Electoral College, where sparsely populated states have disproportionately high numbers of electoral votes compared to more popular states, and in the Senate, where every state has two senators regardless of their size. Since it’s the president and Senate that pick judges, rural voters — typically Republican — have more impact on judicial appointments than urban voters — typically Democrat. Therefore, the Court disproportionately reflects the will of Republican voters even though Democrats keep beating them at the ballot box.

On top of that, the two most consequential appointments of the last decade were made possible by shifty maneuvering from Senate Republicans. When the conservative Justice Scalia passed away with nearly a year left in President Obama’s term, Obama had the chance to swing the court to the left, but the Republican-controlled Senate, citing the election year, didn’t give his nominee, Merrick Garland, a hearing. Then Donald Trump, after losing the popular vote, appointed Neil Gorsuch, a conservative replacement. Later, a month before Trump’s failed re-election, liberal Justice Ruth Bader Ginsburg passed, but this time, despite it being much closer to an election, Republicans did act to confirm her placement, and Justice Amy Coney Barrett swung the court right.

If this isn’t goading, I don’t know what is. If, on top of these developments, Roe and then Obergefell get overturned, a desperate Democratic Party will have a lot more pressure to resort to extreme measures. And, under the time honored doctrine of They Started It, they would feel justified.

We can assume, for example, that when Democrats next have the Senate majority during a Republican presidency, they will block every conservative nominee, whether that’s for six months, a year, four years or two whole terms.

And that’s not all. Citing a Supreme Court that consistently deviates from the majority of American people that side with liberals on these issues, if they ever have the presidency and Congress again — including, say, 52 or 53 senators — they’d be more likely to move forward on the court packing that was rumored but never a serious possibility. They’ll tell us that just like Mitch McConnell’s refusal to grant a hearing to Obama’s nominee was technically legal but a break of norms, so would be expanding the court to 13 seats and filling the four new spots with liberals. The escalation will continue as we careen toward the potential collapse of American democracy.

To be clear, I am not a fan of these solutions! Do I want Democrats to court pack? Absolutely not. The next time Republicans have power, the 13 seats would become 17 or 21, and away we go. It’s not healthy. Keep in mind that I also thought Democrats should confirm Gorsuch despite what had happened with Merrick Garland. One of these parties should be the mature one.

Still, I also understand goading when I see it. If they keep winning presidential popular votes but don’t get Supreme Court justices out of it they will absolutely escalate on their end, and they’ll feel quite justified fighting fire with fire.

My preference, however, is that instead of court packing and falsely claiming the Supreme Court is banning abortions, Democrats follow Scalia’s remedy and attempt to use the political branches, but do it in a realistic way. It’s states, not the Supreme Court, who are about to ban abortions. Therefore, Democrats would be wise to make concerted efforts to win back state legislatures on this issue. Since local elections are not terribly high turnout, a spike in Democratic and pro-choice independent turnout could make a big difference.

At the national level, meanwhile, the Democratic Party’s Women’s Health Protection Act is a nonstarter in the Senate, with analysts saying it’s more restrictive of the states than Roe and Casey are. It doesn’t have the support of senators Manchin, Collins, and Murkowski, who could each be talked into a more moderate measure, and so it couldn’t possibly get 60 filibuster-proof votes in the Senate. If Democrats truly cared about a women’s right to choose, they should more seriously consider being in line with the bulk of American people: codify full early-term abortion rights with later exemptions for fetal abnormality or health of the mother. This is actually where much of Europe is now, a rare example of European policy being less liberal than American policy.

Of course, such a bill would bring the country remarkably close to the Mississippi 15-week ban, which triggered Dobbs v. Jackson in the first place. I can’t imagine Democrats have esophagi wide enough to swallow that amount of pride. Instead, they’ll attempt to use unrealistic abortion legislation in order to force Republicans to announce their opposition to abortion on the record. Republicans from red states will all too happily comply, but the issue may be the difference in a couple key Senate battlegrounds.

As for same-sex marriage, now — not after Obergefell is challenged — is absolutely the time for Democrats to act. In this moment, the issue is not divisive. A vote now has a much higher likelihood of succeeding than one after a high-profile Supreme Court case down the road drives up opposition in the polls and gives Republican lawmakers political cover. Democrats missed their chance on abortion, but it’s not too late for marriage equality. And if they can’t get 60 votes in the Senate, it becomes a second, stronger talking point for November, perhaps helping keep their endangered majority.

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