Is the Court's gay marriage decision up for grabs?

No.

The Washington Post reports that the Supreme Court’s ruling in Dobbs that there is no constitutional right to abortion has “sent fear” through the LGBTQ community that the Court will also overturn its ruling in Obergefell that there’s a constitutional right to gay marriage. The fear stems in part from Justice Thomas’ concurring opinion in which he says the Court should reexamine its decision on gay marriage. It also stems from claims, made vigorously by the dissenters in Dobbs, that the reasoning of Justice Alito’s majority opinion militates in favor of overturning Obergefell.

I think I understand why the LGBTQ community is apprehensive. However, I don’t believe its fears are well founded. In my view, the legality of gay marriage is not up for grabs.

Perhaps it should be. Although I favor gay marriage as a policy matter, I believe Obergefell was incorrectly decided. It may not be as egregious an affront to constitutional analysis as Roe was, but it’s an affront nonetheless.

However, Obergefell is here to stay. Nothing in what any Justice wrote in Dobbs should create a different impression, and the muted public reaction to Obergefell, so very different from the reaction to Roe, renders it safe.

Let’s start with Justice Thomas’ concurrence. Yes, he did call for a reexamination of the gay marriage decision (among others involving the doctrine of substantive due process).

But Thomas is famous for writing solo opinions calling for the overturning of long-established precedents. His views on substantive due process are considered idiosyncratic. They have never captured the fancy of other Justices. Thomas, age 74, is probably three votes (or certainly two) shy of getting Obergefell reexamined and four votes (or certainly three) from getting it overturned.

What about Justice Alito’s majority opinion? It disavows four times the notion that Dobbs has any implications for other rights the court has recognized, including gay marriage. Dale Carpenter at the Volokh Conspiracy cites the four passages. (Carpenter, a strong proponent of the right to gay marriage, doesn’t believe Obergefell is in danger.)

Are these four passages meaningless. The dissent claims so. And the dissent’s argument is not without force.

The dissenters note that the rationale for the majority’s decision is that the right to elect an abortion is not “deeply rooted in history.” Well, neither is the right to gay marriage.

The majority opinion responds that abortion differs from gay marriage because abortions terminate what the Court has called “potential life.” Gay marriage involves nothing of the kind.

However, as Zach Beauchamp points out, “the fact that abortion raises questions about ending lives does not make it any more or less ‘deeply rooted in our history.’” While agreeing that the overturning of Obergefell is unlikely, he calls the majority’s reliance on this distinction “an act of pure legal handwaving, an invention of a standard designed to escape the obvious consequences of Alito’s own logic.”

Even if so, the desire to escape these consequences is telling. But I think the majority’s distinction is more than an evasion.

A primary objection to Roe was that it removed the question of the legality of abortions — a question of life or its negation— from the democratic processes. Obergefell removes the question of gay marriage from democracy, but this is not a question that pertains to life or its negation.

The interest of democratic institutions in maintaining control of decisions regarding life is considerably stronger than its interest in maintaining control over who can marry whom. “Therefore,” as the majority said, “a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases [such as Obergefell] . . . .

There’s another reason why Dobbs should not be viewed as threatening the right to gay marriage. The majority stated:

Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.

The majority left it there, but Carpenter expands, focusing on the two key factors in any stare decisis analysis that the majority mentioned:

The reliance interests in. . .same-sex marriage are much more concrete [than in abortion]. . . Also, protection of the rights to contraception, sexual intimacy, and marriage, are more judicially manageable (workability).  Gay couples have a right to marry on the same terms as others, which does not depend on whether a regulation places an undue burden on that right. It's an on-or-off switch, not a balancing of incommensurable interests.

Putting aside the fine legal points, I don’t believe Obergefell will be overturned because it has already obtained a public acceptance that Roe never did. Far from gaining acceptance, Roe, because so many people equate abortion with murder, was at the heart of a fifty year culture war (Dobbs now inherits that mantle). It was a point of emphasis, if not the focus, of the conservative legal movement. It was a prime target from the day it was decided.

Obergefell is nothing like that. It’s only meaningful connection to the current culture war derives from the fact that, in the aftermath of this decision, the conscience rights of some individuals who believe gay marriage is immoral and don’t want to participate in its celebration — e.g., florists, cake bakers, and wedding planners — are in jeopardy.

This is where the issue of gay marriage will play out in court, not in meaningful challenges to the right itself. In my view, Obergefell is not up for grabs.