According to the rules Justice Alito set forth in Dobbs, same-sex marriage is nothing like abortion. And unless the Court changes the rules again, it should survive constitutional challenge. jaymichaelson writes
Photo: Drew Angerer/Getty Images 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.
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 failed this test, Obergefell passes it.
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.
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.
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.
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