Yes, They're Coming for Same-Sex Marriage
This was always part of the right-wing plan. And it won't stop here.
The Supreme Court has been asked to accept a case challenging Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage nationwide. They may or may not take it up (I hope they don’t). But don’t trust that just because Obergefell has been good law for a decade that it will stay that way. This is the same court that overturned Roe v. Wade, a case that held for almost half a century. And when they overturned Roe, anyone paying even a tiny bit of attention should have known that the right would come for Obergefell next — and that they won’t stop with that, either.
Justice Clarence Thomas said as much in his concurrence in Dobbs v. Jackson Women’s Health, the case that stripped abortion rights from American women. In that case, Thomas wrote a concurrence that is worth a read if you want a peek into the conservative playbook. He argues against the very concept of substantive due process, a legal theory grounded in the idea that there are fundamental rights to which all people are entitled, and upon which the government may not infringe even if they are not delineated in the constitution (the right to marry anyone, for example, is not written in the US Constitution). Because Roe was decided under a framework of substantive due process, and because Thomas believes that Dobbs rightly overturned it, he argues that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Griswold is the case legalizing contraception.
Lawrence is the case legalizing private, consensual sex.
Obergefell is the case legalizing same-sex marriage.
Thomas doesn’t list Brown v. Board of Education in his Dobbs concurrence as an example of a case decided using substantive due process. But Brown was decided the same day as another case striking down segregated schools. That case, Bolling v. Sharpe, concerned Washington, DC schools under federal control, and applied a substantive due process framework to outlaw racial segregation in public schools. Loving v. Virginia, the case that struck down laws banning interracial marriage, was an equal protection case, but also relied on substantive due process to hold that marriage is a fundamental right, and the state cannot infringe upon it on the basis of race. Griswold and several contraception access cases that came after it took a similar tack: The Court held that there is a right to privacy within marriage that the government cannot infringe upon. That privacy right was eventually extended outside of marriage, to a general right of sexual privacy covering contraception use, abortion (Roe), and having sex with consenting people of the same gender (Lawrence). And, of course, Obergefell, which drew on the substantive due process arguments of the reproductive rights, sexual privacy, marriage, and nondiscrimination cases.
