Abolishing Birth Control and Gay Marriage Is on the Table

When it comes to LGBT rights, the conservatives who believe the court won’t go further rely on political and legal realism. The Atlantic’s David French, a conservative writer and lawyer, noted earlier this month that while parts of Alito’s opinion can be read as hostile to Obergefell, other parts would counsel strongly against overturning it. When the Supreme Court considers whether or not to overturn one of its past decisions, one of the factors it typically looks at is what it calls reliance interests. If people built their lives around one of the Supreme Court’s rulings, in other words, how deeply would they be affected if it were overturned? Destabilizing the law too often, French noted, can undermine confidence in the rule of law in general.

When it comes to abortion, Alito wrote that there were no “concrete reliance interests” for abortion because, paraphrasing Casey, getting one is generally an “unplanned activity” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” The same can’t be said for the more than 600,000 same-sex couples that are currently wedded in the United States, a not-inconsiderable number of whom were able to do so because of Obergefell. “By contrast, there is no way to take ‘virtually immediate account’ of a sudden, state-ordered involuntary dissolution of a marriage,” French observed. “Such a ruling would instantly introduce personal and legal chaos into families across the nation.”

I would like to think that the justices wouldn’t be depraved enough to hurl a wrecking ball at hundreds of thousands of lives. Alito’s writing in Dobbs must also be reconciled with his writings in other cases. When the court handed down Obergefell in 2015, he wrote a dissenting opinion where he complained that the majority did not care that “the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition.” He denounced it again in a 2020 dissent by arguing that the right “is found nowhere in the text” of the Constitution and said the ruling had unfairly harmed Americans with anti-gay religious beliefs. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” he concluded.