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    Wisconsin Lawyer
    December 09, 2022

    As I See It
    Dobbs and Same-Sex Marriage in the U.S.

    It seems possible that the analysis in Dobbs v. Jackson Women's Health Organization will be extended to non-abortion-related substantive-due-process rights, despite some justices' reassurances to the contrary.

    Christopher Sean Krimmer

    married couple

    In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and thereby affected access to abortion throughout the United States. The Court also fundamentally changed the legal analysis for recognizing substantive-due-process rights under the U.S. Constitution. This article focuses on how the Dobbs decision could affect the right to same-sex marriage.

    Obergefell v. Hodges

    In Obergefell v. Hodges,1 the Supreme Court recognized that the right to marry includes same-sex couples. Whether a right is recognized as being deeply rooted in our nation’s history and tradition often turns on how the Court frames the right. In Obergefell, the Court could have framed the legal issue more narrowly to whether there is a “right to same-sex marriage.” If so, a historical examination of whether such a right existed and was protected in our nation’s history and traditions would likely result in a conclusion that no such right had existed. Conversely, the issue could be framed, more generally, as being whether there is a “right to marriage” recognized in our country’s history and traditions.

    Christopher S. KrimmerChristopher S. Krimmer, U.W. 1997, operates Forward Legal Services LLC, Madison, where he practices in family law.

    In Obergefell, the Court rejected the notion that rights must be narrowly defined with such specificity in framing the legal issue. “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.”2

    Instead, the Court held that although the right to marriage is not specifically enumerated in the U.S. Constitution, the right to “liberty” encompasses a person’s individual autonomy, which includes the right to marry a partner of the same sex.3 In reaching this conclusion the Court held that the “right to the personal choice regarding marriage is inherent in the concept of individual autonomy,”4 and that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”5

    The Court has applied that same analysis in cases involving other fundamental rights, including use of contraception, intimate associations, a child’s upbringing, and a child’s education. The Court recognized all these as unenumerated substantive-due-process rights deeply rooted in our nation’s history and tradition and essential to the concept of ordered liberty, even if the right is not specifically stated in the U.S. Constitution. This judicial philosophy views the Constitution as a “living and breathing document” that adapts to developments in the law, changes in society, and evolution of thoughts and practices in society.

    But in Dobbs v. Jackson Women’s Health Organization,6 the Supreme Court adopted a textualist or originalist interpretation of the Constitution under which only the rights specifically listed in the Constitution are fundamental rights, constituting a wholesale reversal in the Court’s approach to substantive-due-process rights.

    Dobbs v. Jackson Women’s Health Organization

    The Dobbs Court began its legal analysis by stating that the Court recognizes two categories of constitutional rights: those specially set out in the first eight amendments to the Constitution7 and those that “comprise a select list of fundamental rights that are not mentioned anywhere in the Constitution.”8 It is this second category of rights that arise out of the concept of “liberty,” which the Dobbs court described as a “capricious” term.9

    The Court accordingly held that to be protected, a right based on the concept of liberty must be clearly and deeply rooted in the nation’s history and tradition. In other words, the right will be viewed narrowly and with specificity. It is no longer enough that the practice in question existed historically; instead, it must have been recognized as a protected right at the time or leading up to the ratification of the first eight amendments to the Constitution (that is, in 1868).10

    With this more restrictive reading of the meaning of “liberty” and a textualist approach to the Due Process Clause, the Dobbs Court determined that the 14th Amendment does not protect the right to abortion. The Court delved into a historical examination of whether the right to abortion existed in 1868, when the 14th Amendment was ratified. The analysis did not turn on whether abortion had existed as a practice but whether it had been recognized as a protected right at the time.11 The Court concluded that abortion was not a protected right even if it was practiced throughout history.12

    This approach fundamentally changes how the Court frames and analyzes substantive-due-process rights.13 In looking for the historical significance of abortion and whether it is a recognized right, the Dobbs Court stated:

    “Not only are respondents and their amici unable to show that a Constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the later part of the 20th century – no state constitutional provision, no statute, no judicial decision, no learned treatise.”14

    The Court accordingly concluded that abortion is not deeply rooted in the nation’s history and traditions and therefore not a protected substantive right.

    So what does this all mean for the future of marriage equality?

    Effects of Dobbs on Issues Other than Abortion Access

    The Dobbs approach represents strict adherence to a textualist philosophy that upends American jurisprudence as to how the Court analyzes substantive-due-process rights. The key question is how the Court will frame future cases involving unenumerated rights stemming from the Due Process Clause. It is an easy exercise to replace the term “abortion” with “same-sex marriage,” “same-sex intimacy,” “contraception,” or “interracial marriage” to realize that the viability and survival of those rights are at risk.

    Nonetheless, one could take the Court’s word that Dobbs does not cast doubt on precedents that do not concern abortion.15 The Court painstakingly pointed out that abortion, involving the “destruction of ‘potential life,’”16 is fundamentally different from other rights. This is technically correct. The Court did distinguish the unique facts of abortion from other rights.

    But while the facts in Dobbs were limited to abortion rights, the majority did not limit its legal analysis to abortion. Justices could apply the analysis to any other unenumerated due-process right.

    Dobbs and Same-sex Marriage

    If the Court applies its Dobbs analysis to subsequent substantive-rights cases, it might seem inevitable that any other unenumerated due-process right will be met with the same fate as the right to abortion. But this might not be true, particularly for same-sex marriage.

    First, abortion is indeed different, especially in the context of the passion, beliefs, and interests involved in the debate. As the Court repeatedly referenced in Dobbs, the abortion debate is often seen as a matter of life or death.17 The same cannot be said for same-sex marriage. Although there are deeply held and impassioned beliefs on both sides of the debate over same-sex marriage, most people have moved on.18 Many politically conservative people and religious leaders have embraced, or at least accept, that same-sex marriage is here to stay.19

    Second, in Dobbs the Court provided a framework for overturning precedent by citing five factors it deemed controlling in overturning Roe v. Wade. These factors are 1) the nature of the error in the precedent, 2) the quality of reasoning in the precedent, 3) the workability of the rules imposed by the precedent, 4) the disruptive effect on other areas of law, and 5) the absence of concrete reliance.20 Each established substantive-due-process right that exists today would require a similar test of whether the right can be overturned. This means that the Court could find that Obergefell was incorrectly decided in the first instance but still not overturn it because the factors necessary to overturn precedent are not sufficiently present.21

    Still, even if the Court is unlikely to overturn Obergefell, there is a risk that the rights of married same-sex couples will slowly erode. Over time, limitations and restrictions encroached on the ability to obtain an abortion, and the same fate might be in store for same-sex marriage.

    Court’s Future Substantive-Due-Process Jurisprudence

    A case scheduled to be decided in the Court’s 2022-23 term might provide clues to how the Court will deal with substantive-due-process issues after Dobbs. In the pending case of 303 Creative LLC v. Elenis,22 the Court is being asked to decide whether a state’s nondiscrimination public accommodation law violates the Free Speech Clause of the First Amendment. The case involves a graphic art designer who has a policy, based on her religious objection to same-sex marriage, of refusing to create websites for same-sex weddings. The U.S. District Court for the District of Colorado noted that the designer’s policy apparently violates the Colorado Antidiscrimination Act, which prohibits public businesses from discriminating against individuals based on sexual orientation. The U.S. Court of Appeals for the 10th Circuit affirmed the district court, and the Supreme Court granted certiorari.

    The Supreme Court must resolve this conflict between freedom of speech and Obergefell’s recognition of same-sex marriage. If the Court finds a website is an expression of protected speech, and that protecting married same-sex couples from discrimination is not a sufficiently compelling state interest, then many businesses and employees will be permitted to refuse services or products to some married individuals by claiming that they have a bona fide religious belief against same-sex marriage. It is not illogical to predict that some businesses would then refuse services to gay men and lesbians, married or unmarried, because of the business owners’ religious objections to homosexuality.


    The fundamental lesson to take from Dobbs is that voting matters now more than ever. Supreme Court justices are not political candidates and are apolitical, but they are nominated by the president and confirmed by senators, all of whom are politicians. And, as evidenced by the dissonance of the Roe and Dobbs decisions, the test applied by many politicians when considering Supreme Court nominees is not party affiliation but an individual nominee’s judicial philosophy. Whether you like or dislike the direction of the Court’s recent rulings, the power rests in you to vote accordingly.

    Congress Expected to Pass Respect for Marriage Act

    It is expected that the U.S. Congress will pass legislation known as the Respect for Marriage Act. This act does not change or alter the legal analysis in the companion article on same-sex marriage. What the act will do is protect the rights of same-sex married couples (and interracial married couples) under federal law. This means that if a state does grant same-sex marriages, other states must recognize those marriages as being legal under the U.S. Constitution’s Full Faith and Credit Clause.

    The Respect for Marriage Act also repeals the Defense of Marriage Act of 1996, which defined a marriage under federal law as being only between a “husband” and “wife.” The Defense of Marriage Act was deemed unconstitutional by the U.S. Supreme Court in 2013 with the United States v. Windsor decision, issued two years before the Obergefell v. Hodges decision in 2015, which required states to grant same-sex marriages. Nevertheless, there is a genuine concern by some members of Congress that both marriage cases could be overturned by this U.S. Supreme Court with the reasoning and constitutional analysis set forth in the Dobbs decision.

    The Respect for Marriage Act does not require any state to grant same-sex marriage if that right is overturned by the U.S. Supreme Court. Instead, it requires a state to recognize the same-sex marriages of another state. Gay and lesbian couples could travel to another state to marry and then under this act, the couple’s home state would be required to recognize the marriage even if that home state does not itself grant same-sex marriage. The act contains some exceptions for nonprofit religious organizations regarding recognition of marriages in other states.

    The Respect for Marriage Act has significant bipartisan support, and President Biden is expected to sign the legislation if passed.


    1 Obergefell v. Hodges, 576 U.S. 644 (2015).

    2 Id. at 671. The Court further explained, “Loving did not ask about a ‘right to inter-racial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’ Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.” Id.

    3 Id. at 665.

    4 Id. at 647.

    5 Id.

    6 Dobbsv. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

    7 Id. at 2246.

    8 Id.

    9 Id. at 2235.

    10 See, e.g., id. at 2260.

    11 Id. at 2242.

    12 Id.

    13 The author does not suggest that the textualist judicial philosophy or approach to substantive-due-process rights was not practiced by prior individual Supreme Court justices (for example, Justice Antonin Scalia).

    14 Dobbs, 142 S. Ct. at 2254.

    15 Id. at 2275-78.

    16 Id. at 2261.

    17 Id. at 2243, 2258, 2261, 2268, 2277.

    18 In a Pew Research Center polling in 2004, Americans opposed same-sex marriage by a margin of 60% to 31%. In 2019, the Pew Research Center found support for same-sex marriage was at its highest point, with 61% of Americans supportive of same-sex marriage, while only 31% opposed it. Three-quarters of Democrats and Democratic-leaning independents (75%) and fewer than half of Republicans and Republican leaners (44%) favored same-sex marriage. About two-thirds of white “mainline” Protestants supported same-sex marriage, as did a similar share of Catholics. Evangelical Protestants traditionally oppose same-sex marriage, although the percentage in favor of same-sex marriage had grown from 11% in 2004 to 29% in 2019. Attitudes on Same-Sex Marriage: Public Opinion on Same-Sex Marriage, Pew Research Ctr. (May 14, 2019).

    19 Id.

    20 Dobbs, 142 S. Ct. at 2265.

    21 Justice Clarence Thomas, in his concurring opinion in Dobbs, wrote that he is poised and ready to overrule Obergefell and many, if not all, unenumerated substantive-due-process rights arising out of the Due Process Clause. No other justice on the Court joined him in that concurrence. Id. at 2301 (Thomas, J., concurring).

    22 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907 (D. Colo. 2019), aff’d, 6 F.4th 1160 (10th Cir. 2021), cert. granted in part, 142 S. Ct. 1106 (2022). The Supreme Court is scheduled to hear oral argument in 303 Creative LLC on Dec. 5, 2022.

    » Cite this article: 95 Wis. Law. 30-33 (December 2022).

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