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.
Unenumerated rights are those not explicitly set forth in the Constitution but inferred from its text, structure, ethos and history. 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.
Constitutional scholars and advocates are now pressed to do the previously unimaginable work of defending those 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. What we need now are the best arguments for why the court should not overrule those cases.
The critical part of the right to same-sex marriage secured by the Obergefell v. Hodges decision in 2015 is that it rested not only on the due process clause but also on the equal protection clause. 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, in contrast, focuses on groups, noting that states cannot treat historically subordinated groups on unequal terms.
In Obergefell, the court found a fundamental right to same-sex marriage under its due process analysis. Yet it also found under its equal protection analysis that if straight people could get married, gay people must be able to get married as well. In adopting this double-barreled approach, Obergefell mimicked the 1967 decision in Loving v. Virginia, which recognized the right to interracial marriage. (For whatever reason, Justice Thomas does not mention Loving as a case he would like the court to 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 protection clause focuses on groups, not on rights. The clause has restricted states from making invidious distinctions among people based on classifications such as 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. So the question becomes whether gay people must also be afforded the right to marry without regard to their sex or sexual orientation. And the court’s equal protection jurisprudence has stringently protected individuals against sex discrimination and, to a lesser extent, sexual orientation discrimination.
Second and relatedly, the equal protection clause is not as beholden to history as the due process clause. The point of the equal protection clause has never been to safeguard 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 a limited one. 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. So this equal protection defense should be regarded as but one of several firewalls needed to limit the damage Dobbs could do to other unenumerated rights. Progressive constitutionalists should be developing every defense that they can find. 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.
Yet this equal protection argument may not work even for same-sex marriage. Given the recent barrage of opinions that have radically revised the constitutional landscape with regard to the religion clauses and the Second Amendment, we should not assume the court will preserve the ground rules of equal protection analysis. It could decide, for instance, that the equal protection clause should similarly be limited by history to protect only against race-based discrimination. That would be a downright apocalyptic result 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 is the Chief Justice Earl Warren professor of 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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