While the Supreme Court’s view in Dobbs v. Jackson Women’s Health Organization has been catastrophic in its effects on reproductive rights and women’s equality in this country, it has also sparked speculation that the court’s conservative majority has just begun the reversal of fundamental rights. Certainly, the majority opinion of Judge Samuel Alito goes to great lengths to say that “nothing in this opinion should be understood to cast doubt on precedents not related to abortion.” Yet that statement sounds false.
Unlisted rights are rights that are not explicitly enshrined in the Constitution, but are inferred from its text, structure, ethos, and history. The majority opinion, citing an earlier controversial opinion, argues that myriad rights will not be recognized unless they are “deeply ingrained in the history and tradition of this country”. However, the court previously recognized many rights other than abortion that are not so entrenched. In agreement with Dobbs, Judge Clarence Thomas urged the court to follow its own logic, stating that “we must reconsider all substantive precedents of a fair trial in future cases.” He cites three cases for the protection of the right to contraception, sexual intimacy between persons of the same sex and same-sex marriage.
Constitutional scholars and advocates are now being pressured to do the previously unimaginable work of defending those precedents. There are reasons to set Roe apart from all the precedents Judge Thomas cites, though the current court is so unpredictable that there’s no guarantee it will honor those awards. What we need now are the best arguments why the court should not dismiss those cases.
The critical part of the right to same-sex marriage enshrined in the Obergefell v. Hodges decision in 2015 is that it relied not only on the due process clause, but also on the equal protection clause. These two clauses are found in the 14th Amendment – the 1868 provision seen as the cornerstone of Reconstruction in ushering in a new birth of freedom for this country. As interpreted by the courts, the due process clause protects unwritten rights that individuals possess from infringement by the states (just as the fifth amendment due process clause provides the same protection against the federal government). The equal protection clause, on the other hand, focuses on groups, noting that states cannot historically treat subordinate groups on unequal terms.
In Obergefell, the court found a fundamental right to same-sex marriage based on its investigation into a fair trial. But it also found in its analysis of equal protection that if straights could marry, gays should be able to marry. By adopting this dual gait approach, Obergefell mimicked the 1967 decision in Loving v. Virginia, which recognized the right to interracial marriage. (For whatever reason, Judge Thomas doesn’t list Loving as a case he’d like the court to reconsider.)
The court could revisit Obergefell and rule that the fair trial should be lifted because the right to same-sex marriage is not “deeply ingrained in the nation’s history.” However, it could not so easily abandon the equal protection argument, for at least two reasons.
First, the equal protection clause focuses on groups, not rights. The clause has restricted states from making nasty distinctions between people based on classifications such as race, national origin and gender. It is completely unlikely that the court will abolish marriage for opposite-sex couples, as that right has deep historical roots. The question is therefore whether gays should also be given the right to marry without regard to their gender or sexual orientation. And the Equal Protection Court’s case law has rigorously protected individuals from discrimination based on sex and, to a lesser extent, discrimination based on sexual orientation.
Second, and related to that, the equal protection clause is not as historically mandatory as the due process clause. The purpose of the equal protection clause has never been to protect historical traditions. Rather, equal protection case law has sought to overthrow traditions that have led to the subordination of certain groups—whether it’s abolishing a long-standing tradition of banning racial minorities from serving on juries, a long tradition of excluding women from state-funded universities or a long tradition of subordinating gays, lesbians and bisexuals. Under Dobbs’ problematic formulation “which is deeply rooted in the nation’s history,” the long history of discrimination against gays undermines many arguments for gay rights. But the same history supports the equal protection argument, because the purpose of this clause is to undo our nation’s worst traditions.
This defense is limited. It is primarily available to preserve decisions – such as those protecting same-sex and interracial marriage – in which the opinion was formally based on an equal protection ground and due process ground. So this equal protection defense should be considered just one of the many firewalls needed to limit the damage Dobbs could do to other myriad rights. Progressive constitutionalists should develop every defense they can find. For example, the right to same-sex sexual intimacy and the right to contraception could be considered more workable — a criterion the Dobbs court considers important — than the right to abortion, which the court said was a particularly troubling issue.
Still, this equal protection argument may not even work for same-sex marriage. Given the recent barrage of opinion that has radically overhauled the constitutional landscape regarding the religion clauses and the Second Amendment, we should not assume that the court will uphold the ground rules of equal protection analysis. For example, it could decide that the equal protection clause should be similarly limited by history to protect only against discrimination based on race. That would be a downright apocalyptic outcome for the nation and the Constitution. The equal protection clause is the most viable update mechanism in our difficult-to-change Constitution; it expands who counts as part of ‘we, the people’. If the current court also erodes this clause, the mismatch between the age-old document and the 21st-century society it serves and structures will become even more devastating.
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law and co-author of the forthcoming book “Say the Right Thing: How to Talk About Identity, Diversity and Justice.”
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