For many, the Supreme Court’s decision to overturn Roe v. Wade, and the immediate banning of abortion in over a dozen states, has been nothing short of traumatizing. Millions of women woke up on June 25 as less than equal citizens. Many in the LGBTQ+ community have also worried that we may be next, because in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas explicitly said that the constitutional right to marriage for all should be “reconsidered.” This is personal for me; if my ten-year marriage were suddenly voided, it’s not clear if my husband and I would have custody of our daughter.
Based on Justice Samuel Alito’s opinion for the majority in Dobbs, however, I think there are good reasons why the right to same-sex marriage is more secure than the right to abortion. Because while the constitutional logic of Dobbs does extend to marriage equality, as I wrote in May, its jurisprudential logic — specifically, its factors for when a precedent should be upheld or overturned — does not.
Now, this is not to say that LGBTQ+ people should not be concerned about the religious right’s takeover of the Supreme Court; trans people, in particular, are being viciously targeted by a wave of anti-science, anti-compassion campaigns. Nor should the Court’s conservatives be trusted, because they all said, under oath, that Roe was settled precedent, before voting to overturn it. It is only to note that, according to Justice Alito’s own reasoning, Obergefell, the 2015 case recognizing the right of all people to marry, is very different from Roe.
Dobbs sets out a five-part test for when precedents should be overturned: the nature of the precedents’ error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance. While Roe and Casey (the 1992 decision upholding Roe) failed this test, Obergefell passes it.
The first two factors can be considered together: the nature of the precedents’ “error” and quality of their reasoning. For Justice Alito, Roe was “egregiously wrong” for a number of reasons: It arrogated to the judiciary what should be a legislative power by inventing the trimester framework out of whole cloth. Furthermore, it is grounded in the doctrine known as “substantive due process,” which, in Justice Alito’s formulation of it, requires that a right be “rooted in this Nation’s history and tradition,” which he says a right to abortion is not. And unlike other applications of this doctrine, an abortion “destroys … ‘potential life.’”
Obergefell is different. First, as law professor Kenji Yoshino recently noted, it is grounded in the Constitution’s equal-protection clause as well as the due-process clause, and thus does not trigger Justice Alito’s dubious “history and tradition” requirement. On the contrary, since (straight) marriage is unquestionably part of our nation’s history and tradition, Obergefell is about granting an existing right to all people equally, not creating a new right.
But for Justice Alito, the important distinction is that while same-sex marriage is also grounded in substantive due process, it does not “destroy potential life.” For Justice Alito, this feature of abortion was dispositive. Quoting Casey, he said, “[a]bortion is a unique act” because it terminates “life or potential life. … 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.”
Now, the Court’s conservatives could still extend the logic of substantive due process to all cases, including same-sex marriage and mixed-race marriage. (It would be hard to explain why the Constitution protects mixed-race marriages but not same-sex ones; both were anathema at the time of the founding and the passage of the 14th Amendment.) Or they could simply decide, as Yoshino speculated, that equal-protection claims cover only race, not gender. That would be a devastating earthquake in constitutional law. But as the post-Dobbs law stands now, Obergefell is clearly distinguishable from Roe because it does not terminate “potential life.”
Justice Alito’s third criterion is the “workability” of the precedent, or in his words, “whether it can be understood and applied in a consistent and predictable manner.” Applied to Casey, which preserved Roe but allowed abortion restrictions that did not place an “undue burden” on women, Alito correctly observed that the results have been neither consistent nor predictable. Of course, this is mostly due to anti-abortion politicians incessantly testing the boundaries of Casey by passing ever more creative restrictions. But it is the case that numerous regulations have been proposed, reviewed, sustained, and struck down in 20 years of judicial chaos. This is not the case for Obergefell. While there are heated debates over the right balance between same-sex marriage and various religious claims — on the part of bakers, florists, wedding venues, employers, and others — these are actually quite limited in application, and nothing like the shifting parameters of Roe and Casey.
Relatedly, Justice Alito’s fourth prong — the precedent’s effects on other areas of law — is again quite different in the case of marriage equality. In Justice Alito’s briefly stated view, Roe “require[d] courts to engineer exceptions to longstanding background rules” such as standing and statutory interpretation. This is, at best, debatable, but even if true, Obergefell has had no comparable effect.
Perhaps most important, if problematic, is Justice Alito’s fifth criterion, “the absence of concrete reliance.” The doctrine of reliance applies when someone depends on a rule or contract being in place, and takes actions on that basis. If we have a signed contract for me to sell you my home, and you sell your own home as a result, you have a reliance interest in that contract, and I’ll be liable for breaching it.
The question of reliance on Roe is tricky. On an individual level, the decision to get an abortion, by definition, is never made more than a few months in advance, so traditional reliance interests do not apply. More broadly, pro-choice advocates have argued that women depend on the availability of abortion to plan their professional and civic lives, but Justice Alito dismissed this claim as “intangible” and “hard for anyone … to assess.”
That claim, too, is debatable at best — I would call it offensive. But even if we grant it, the case of marriage equality is entirely different. Like millions of other LGBTQ+ people, I have built my entire life around the Obergefell decision since it was rendered. My husband’s and my shared custody of our daughter depends on it. Our end-of-life plans depend on it. Even our mortgage depends on it. If the rug is pulled out from underneath us, our lives will be severely disrupted. That is the essence of reliance. We rely on Obergefell every day.
And of course, we’re the privileged ones. What about same-sex couples whose immigration status depends on their marriage? Or their ability to visit their spouses in jail? Or to access health insurance? In ways not analogous to Roe, millions of families rely on the right announced in Obergefell for their very existence.
Now, for progressives, Justice Alito’s five criteria may be cold comfort. They still rely on highly contentious, highly conservative views about the nature of constitutional interpretation, not least the notion that in adjudicating fundamental rights, history gets a veto rather than a vote. My use of Justice Alito’s five-part test here is not meant to imply that it is correct, or properly applied in Dobbs, or consistent with the Court’s previous jurisprudence. (Indeed, it is largely based on an invention of Justice Thomas in 2019, which I said at the time “showed how the Supreme Court would overturn Roe v. Wade.”) My only point is that, if you do apply it, the right of gay people to marry should stand.
However, one can disagree with a set of rules and still play a game according to them. And according to the rules Justice Alito set forth in Dobbs, same-sex marriage is nothing like abortion. Unless the Court changes the rules again, it should survive constitutional challenge.
