While the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization is already catastrophic in its effects on reproductive rights and the equal treatment of women in this country, it has also led to speculation that the court’s conservative supermajority is just getting started in rolling back fundamental rights. To be sure, Justice Samuel Alito’s majority opinion is at pains to say that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Yet that statement rings false.
Unnumerated rights are those that are not explicitly stated in the Constitution, but which can be inferred from its structure, history, text, and ethos. The majority opinion, quoting an earlier, contested opinion, states that unenumerated rights will not be recognized unless they are “deeply rooted in this nation’s history and tradition.” The court, however, previously recognized many rights other than abortion that are not so rooted. In his concurrence in Dobbs, Justice Clarence Thomas urges the court to follow its own logic, contending that “in future cases, we should reconsider all of this court’s substantive due process precedents.” He names three cases protecting the rights to contraception, same-sex sexual intimacy and same-sex marriage.
Advocates and constitutional scholars are now under pressure to defend these precedents. Grounds exist to distinguish Roe from all the precedents Justice Thomas mentions, though the current court is so unpredictable that there’s no guarantee it will honor those distinctions. We need to present the strongest arguments why the court should not rule in these cases.
The Obergefell decision in Obergefell and Hodges in 2015 was crucial for the right of same-sex marriage. This decision relied on the due process clause as well as the equal protection. These two clauses can be found in the 14th Amendment — the 1868 provision seen as the keystone of Reconstruction in ushering in a new birth of freedom for this country. As interpreted by the courts, the due process clause safeguards unwritten rights that individuals possess from infringement by the states (just as the Fifth Amendment’s due process clause offers the same protection against the federal government). The equal protection clause, on the other hand, focuses on groups and notes that states cannot treat historically subordinated group on unequal terms.
Obergefell’s due process analysis found that Obergefell had a fundamental right of same-sex marriage. However, it also found that if straight people can marry, gay people should be able to do so. Obergefell adopted this double-barreled approach in imitation of Loving v. Virginia 1967, which recognized the right for interracial marriage. (Justice Thomas does not mention Loving, but he would like to see the court reconsider.
The court could revisit Obergefell and decide that its due process holding should be overruled because the right to same-sex marriage is not “deeply rooted in the nation’s history.” However, it would not be able to dispense with the equal protection argument so easily, for at least two reasons.
First, the equal rights clause focuses on groups and not on individual rights. This clause has prevented states from making invidious differences between people based on their race, national origin, and sex. It’s completely implausible that the court will eliminate marriage for different-sex couples, as that right has a deep historical provenance. The question is whether gay couples should also have the right to marry regardless of their sexual orientation or sex. And the court’s equal protection jurisprudence has stringently protected individuals against sex discrimination and, to a lesser extent, sexual orientation discrimination.
Second, the equal protection clause doesn’t have the same obligation to history as the due-process clause. The purpose of the equal protection clause was never to protect historical traditions. To the contrary, the equal protection jurisprudence has attempted to upend traditions that have led to the subordination of particular groups — whether in abolishing a long tradition of barring racial minorities from serving on juries, a long tradition of excluding women from state-funded universities or a long tradition of subordinating gay, lesbian and bisexual people. Under Dobbs’s problematic “deeply rooted in the nation’s history” formulation, the long history of anti-gay discrimination undermines many gay-rights arguments. But the same history bolsters the equal protection argument because the purpose of this clause is to undo our nation’s worst traditions.
This defense is not broad enough. It is primarily available to preserve decisions — like those protecting same-sex marriage and interracial marriage — in which the opinion formally rested on an equal protection ground as well as a due process ground. This equal protection defense should not be considered a firewall to limit Dobbs’ potential damage to other unnumerated rights. Progressive constitutionalists should develop every defense they can. The right to same-sex sexual intimacy and the right to contraception, for instance, might be deemed more workable — a criterion the Dobbs court finds important — than the abortion right, which, in that court’s view, presented a particularly vexing line-drawing issue.
This equal protection argument may not be applicable to same-sex marriages. We should not assume that the court will maintain the equal protection analysis ground rules, given the recent spate of opinions that have drastically changed the constitutional landscape in relation to the religion clauses. It could decide, for example, that the equal-protection clause should be similarly restricted by history to only protect against discrimination based on race. This would be a terrible outcome for the nation and the Constitution. The equal protection clause is the most viable updating mechanism in our hard-to-amend Constitution; it ensures the expansion of who counts as part of “we, the people.” If the current court hollows out this clause as well, the mismatch between the centuries-old document and the 21st-century society it serves and structures will become even more devastatingly apparent.
Kenji Yoshino, Chief Justice Earl Warren professor in constitutional law at N.Y.U. School of Law and a co-author of the forthcoming book “Say the Right Thing: How to Talk About Identity, Diversity and Justice.”
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