Why Justice Alito’s Draft Opinion in Dobbs Doesn’t Threaten Gay Marriage

Why are the issues different? Because Justice Alito says they’re different.

As a person who’s been litigating and writing about abortion and abortion-related issues for more than 30 years, I’ve been surprised by only one thing about the public reaction to Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health—the sheer intensity of the concern that the reversal of Roe v. Wade would lead to the imminent reversal of Obergefell v. Hodges, the 2015 Supreme Court case that recognized a constitutional right to same-sex marriage.

In theory, this concern is quite credible. Writing in The Atlantic, Adam Serwer lays out the argument eloquently. At its essence, it says that by confining constitutional recognition of unenumerated rights (rights not specifically mentioned in the Constitution) only to those rights “deeply rooted in the nation’s history in tradition,” the Court is granting itself license to roll back a whole host of rights we currently take for granted, including rights to contraceptive access, sexual intimacy between consenting adults, and same-sex marriage.

After all, each of those rights was relatively recently recognized by the Court. How can it be argued they’re “deeply rooted”? Here’s Serwer:

“The majority can believe that it’s only eviscerating a right to abortion in this draft,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me, “but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”

Again, this argument is far from frivolous. As Alito notes in his draft opinion, the use of the due-process clause of the Fourteenth Amendment to recognize each of the rights above (including the right to abortion) has always been “controversial.” And if the Court is chipping away at the reach of the Fourteenth Amendment in Dobbs, what’s to stop it from taking aim at Obergefell next?

In fact, combine the potential Dobbs opinion with the reality that many red-state legislatures seem to be competing with one another in their eagerness to wage the culture war, and isn’t a renewed challenge to gay marriage all but inevitable?

A challenge may be imminent, but I believe the challenge will fail, in large part because of the draft Dobbs opinion itself. In the opinion, Alito went out of his way to distinguish prior Fourteenth Amendment cases—such as Obergefell—from Roe. He was quite explicit. Page 32 of the draft opinion contains this key paragraph:

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decision acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being” … None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. (Emphasis added.)

Although Roe and Casey didn’t rely on Obergefell (they were decided years before), Alito specifically referenced Obergefell in the preceding paragraph, and the cases Alito is referring to formed the legal foundation of Obergefell. It is clearly encompassed by the reasoning above.

In plain English, Alito argues that abortion is dramatically different from cases involving marriage, because abortion involves harm to a non-consenting party, the “potential life” (to use the language from Roe) of the unborn child. Interracial marriage involves consenting adults. So does gay marriage. A person consents to using contraception. Prior cases protect consensual adult sexual activity.

Beyond this language, however, there’s another reason to believe that Dobbs does not undermine Obergefell—Alito’s view of “reliance” within the doctrine of stare decisis. For those unfamiliar with the phrase, stare decisis is a legal term referring to the weight the justices grant precedent. While the Supreme Court can overrule any of its prior cases, the principles of stare decisis urge restraint. Otherwise, legal doctrines would be too unstable and unpredictable for a rule of law–based society.

When the Court determines whether to overturn precedent, one factor to consider is whether, as Alito puts it, “very concrete reliance interests” are at stake. In other words, how much has a person ordered their life and affairs around existing law? Alito highlights cases “involving property and contract rights” as particularly concrete.

If a contract is concrete, then that’s doubly true for marriage. It represents two people ordering their lives, their property, and their finances around the existence of the legally recognized marriage relationship. This is profoundly different from abortion, which even Planned Parenthood v. Casey (the 1992 case that upheld Roe) recognized as a generally “unplanned activity.” As the Casey Court stated, [R]eproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”

By contrast, there is no way to take “virtually immediate account” of a sudden, state-ordered involuntary dissolution of a marriage. Such a ruling would instantly introduce personal and legal chaos into families across the nation.

It is a perilous business predicting the decisions of the Supreme Court. That’s why one should never scoff at thoughtful opposing arguments, but the principal reason I don’t believe that Dobbs will impact gay marriage (or contraceptives, much less interracial marriage or consensual adult sexual intimacy) is the language of Dobbs itself. Justice Alito says his opinion “does not undermine” the cases that form the foundation of Obergefell “in any way.”

There are those who may simply disbelieve Alito, but if his draft opinion holds as written, it will be precedent for the idea that abortion is substantially legally different from gay marriage. It does not treat the two issues the same, and if the Supreme Court is going to limit the rights of consenting adults to privacy, intimacy, and marital relationships, it won’t do so through Dobbs.