In Dobbs, the Supreme Court recognized that the Constitution can “guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” The court went on to note, however, that “[u]ntil the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”
The same could be said even more clearly and honestly about marriage equality, where there certainly was no such right at the time the Constitution or 14th Amendment were adopted. To the contrary, there were laws that specifically criminalized same-sex sexual behavior, in much the same way – or even more -- that abortions were criminalized (which also gives us pause about the invalidation of anti-sodomy laws, themselves). No honest read of the history would cause a person to think that the writers of the Constitution or the 14th Amendment intended to protect same-sex marriage. So much for history.
The Supreme Court also notes that Roe v. Wade disrupted the political processes in place: “In the years prior to [Roe], about a third of the States had liberalized their laws, but Roe abruptly ended that political process.” This precise argument was made by the dissent in Obergefell by Justice Scalia. And others. Most states still have not permitted same-sex marriage by legislation and the political process has been short-circuited by Obergefell without a doubt. Indeed, absent federal court intervention, today 35 states – far more than flatly prohibit abortion – do not permit same-sex marriage.
Obergefell is also vulnerable on precedential grounds. The doctrine of stare decisis urges courts to refrain from altering existing precedent. If precedent is longstanding, then courts should be even more hesitant to overrule the earlier decision. Roe was 50 years old and decided 7-2, yet the court felt comfortable rejecting the role of stare decisis and overruling it. By contrast, Obergefell is only 7 years old and was decided 5-4, making the weight of stare decisis much less.
Of course, there must be a case brought to the Supreme Court to challenge marriage equality. But we think that states will easily manufacture such a case. For example, in a state where the sole basis for same-sex marriage is Obergefell, a county clerk can refuse to issue marriage licenses, arguing that Obergefell is no longer “good law”. Indeed, we suspect that there are states where the state Supreme Court would rule that Obergefell is not good law for just such a reason and force the U.S. Supreme Court to act.
We do recognize, however, that there could be a few reasons to think to the contrary. Maybe Dobbs is really only about abortion (as Justice Alito insists and Justice Thomas denies) and the unique place of a potential life in the constitutional scheme. While this is very bad for those who are pro-choice, as it could produce a German-type protection of the rights of the fetus where abortions are constitutionally prohibited absent a need -- it confines the logic of Dobbs to abortion uniquely.
Second, we are fairly certain that the Supreme Court will continue to recognize marriage as a fundamental right and thus we are also confident that the Court will not revisit the Loving v. Virginia case (which made bans on interracial marriages illegal) and return us to an age of miscegenation. Because marriage will remain a fundamental right, one can wonder if the Supreme Court will protect same-sex marriage under an equal protection justification, unlike abortion.
Permitting opposite-sex couples to enjoy a fundamental right and not similarly situated same-sex couples could run afoul of equal protection. When a law implicates a fundamental right under equal protection, that law is subject to strict scrutiny, where there must be a compelling justification for the distinction. The justifications offered for banning same-sex marriages were viewed as thin leading up to Obergefell, and the years of marriage equality seem to have only served to undermine those concerns.
Third, the Chief Justice, in his Obergefell dissent, alluded to an equal protection argument, suggesting he is open to it. The same can be said for Justice Gorsuch, who expanded protections of federal civil rights laws to cover sexual orientation and gender identity; he may also be receptive to such an argument.
We think the time has come to be honest and aver that what we need is a constitutional amendment to address these issues. Until then, the ever-changing composition of the court will determine the answers to these question, and as the justices change, so might the answers.
Michael J. Broyde and Timothy R. Holbrook are law professors at Emory University.