Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.
Notably, the majority opinion in Obergefell rejected Alito’s claim that all unenumerated rights flow from Glucksberg. The Glucksberg approach, Justice Anthony Kennedy wrote for the Court in Obergefell, “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”
Alito has also shown no signs that he respects Obergefell as a precedent that should be followed even if he disagrees with it. That said, we do not yet know if Alito has five votes to overrule Obergefell (or to attack older precedents such as Lawrence); it’s possible that some of the Court’s other Republicans would join with its three Democrats to preserve marriage equality.
Alito’s draft Dobbs opinion, in other words, probably should be read as an opening bid to his colleagues. How far will they go with him in attacking other rights?
Justice Kennedy built decisions like Lawrence and Obergefell on a foundation of sand
For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.
In Lawrence, for example, Kennedy tells us that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” and that “as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” But he does little to tie his decision to foundational legal doctrines, thus leaving the rights protected by Lawrence more vulnerable to being overturned by a dedicated, conservative majority.
The strongest argument that discrimination on the basis of sexual orientation violates the Constitution, meanwhile, is rooted in the Constitution’s provision stating that no one shall be denied the “equal protection of the laws.” As the Court held in Cleburne v. Cleburne Living Center (1985), this provision provides heightened constitutional protection to groups that have historically faced discrimination because they possess a trait that “frequently bears no relation to ability to perform or contribute to society.” And there’s no reasonable argument that sexual minorities are not such a group.
By the mid-20th century, for example, many city police forces employed “morals squads” that arrested hundreds of gay men every year. In 1952, Congress prohibited gay men and lesbians from immigrating to the United States. A year later, President Dwight Eisenhower signed an executive order barring gay people from the federal workforce and requiring federal contractors to discharge employees who engage in “sexual perversion.”
Congress did not lift the ban on gay immigrants until 1990. The ban on gay federal employees wasn’t fully lifted until 1998.
But Kennedy largely ignored this equal protection argument, and instead grounded decisions like Lawrence and Obergefell in a weaker unenumerated rights framework. Obergefell, for example, did not hold that marriage discrimination is unconstitutional because it is discrimination. It held that same-sex couples benefit from an unenumerated “right to marry.”
One problem with this approach is that it was clear, by the time Lawrence and Obergefell were decided, that the Court’s right flank was eager to narrow the scope of unenumerated rights and apply the “history and tradition” framework that Alito relies on in Dobbs. Glucksberg, after all, was decided six years prior to Lawrence.
By adopting the weaker unenumerated rights framework, in other words, Kennedy tied gay rights to a legal regime that was already under attack from the Court’s right flank.
It was inevitable that, if conservative Republicans took over the Court, they would swiftly move against Roe v. Wade. Because Lawrence and Obergefell are doctrinally similar to Roe, that means this inevitable attack on abortion rights also endangers LGBTQ rights.
Alito is the Court’s staunchest opponent of LGBTQ rights
Alito is the Court’s consummate legal strategist, constantly looking for ways to move the law to the right, and ever eager to bury bones in one opinion that can be dug up in a future case to score another conservative victory.
Writing for the Court in Knox v. SEIU (2012), for example, Alito asserted that previous Court decisions permitting public-sector unions to charge nonmembers for certain services the union provides to those nonmembers were “something of an anomaly.” This swipe at unions bore fruit in Janus v. AFSCME (2018), which overruled the decisions Alito criticized in Knox and cut off an important source of union funding.
Alito’s Dobbs opinion, with its exclusive reliance on the Glucksberg framework to determine which unenumerated rights are protected by the Constitution, reads much like Alito is trying to run the same play that he successfully pulled off in Knox — slipping language into one opinion that can be used to justify another conservative victory in a future decision.
Much of the draft Dobbs opinion tracks Alito’s analysis in his Obergefell dissent. Like the abortion opinion, Alito’s dissent against marriage equality claims that the only unenumerated rights protected by the Constitution are “those rights that are ‘deeply rooted in this Nation’s history and tradition.’”
Alito then spends the bulk of his opinion claiming that “traditionally,” the right to marry “was inextricably linked to the one thing that only an opposite-sex couple can do: procreate” — an argument that, if taken seriously, would also prohibit people who are post-menopausal or who have undergone a vasectomy or hysterectomy, among other things, from being married.
Alito’s disdain for LGBTQ rights is apparent in his Obergefell dissent, a rhetorical choice that sets him aside even from several of his fellow Republican justices. Some of Alito’s conservative colleagues, who dissented in major LGBTQ rights decisions, went out of their way to state in those dissents that they bear no personal animus toward sexual or gender minorities.
Dissenting in Lawrence, for example, Justice Clarence Thomas made clear that he thinks that the so-called sodomy law at issue in that case is “uncommonly silly” and that, if he were a Texas state lawmaker, he “would vote to repeal it.” Similarly, while Justice Brett Kavanaugh dissented from the Court’s decision in Bostock v. Clayton County (2020), which held that existing civil rights laws prohibit discrimination against LGBTQ employees, Kavanaugh concluded his Bostock dissent by declaring his respect for the “extraordinary vision, tenacity, and grit” of “gay and lesbian Americans” who’ve “worked hard for many decades to achieve equal treatment in fact and in law.”
Alito’s Obergefell dissent, by contrast, treats the moral case for LGBTQ equality as so insignificant that it must bow to concerns that conservatives might be made to feel bad if same-sex couples are allowed to marry. The Obergefell decision, Alito complains, “will be used to vilify Americans” who believe that same-sex couples do not deserve equal rights. And people who express anti-LGBTQ views “will risk being labeled as bigots.”
Of course, the First Amendment protects the right of all Americans to disparage their political opponents, and to use strong language such as the word “bigot” when criticizing someone’s political viewpoint. And the Supreme Court has never held that someone’s constitutional rights must be diminished due to fears that someone, somewhere, might say something mean about people who oppose those rights. Imagine if the Court had backed away from Brown v. Board of Education (1954) due to fears that white supremacists might be shunned or condemned.
In any event, Alito appears to believe that it is more important to protect social conservatives from being made to feel bad than it is to protect LGBTQ Americans from systemic discrimination by their own government. This blinkered approach is likely to drive his approach to LGBTQ rights in the future.
But will Alito have five votes to overrule cases like Obergefell?
It’s likely that a majority of the current Court believes that cases like Lawrence and Obergefell were wrongly decided. After all, of the four justices who dissented in Obergefell, three are still on the Court. Two of the justices in the majority, meanwhile, were replaced by conservative Trump appointees.
But the principle of stare decisis — the doctrine that courts typically should be bound by their previous decisions — is supposed to foster stability in the law, and it’s also supposed to discourage justices from tossing out precedents simply because those justices disagree with them. So anti-LGBTQ litigators need to do more than simply convince a majority of the justices that Obergefell should have come down the other way when it was originally decided. They also have to convince at least five justices to overturn the legal basis for hundreds of thousands of Americans’ existing marriages.
It would be shocking if any of the liberal justices — Justices Sonia Sotomayor, Elena Kagan, and incoming Justice Ketanji Brown Jackson — vote to overrule decisions like Obergefell. Chief Justice John Roberts also appears to have made his peace with marriage equality. Roberts joined the majority opinion in Pavan v. Smith (2017), which reaffirmed Obergefell’s holding that same-sex couples must enjoy the exact same marital rights as opposite-sex couples.
Meanwhile, in a 2020 opinion joined by Alito, Thomas complained that Obergefell has “ruinous consequences for religious liberty.” Three justices — Thomas, Alito, and Gorsuch — dissented in Pavan. That suggests that Alito has two natural allies in the fight against LGBTQ rights.
To sustain decisions like Obergefell and Lawrence, in other words, defenders of those decisions likely need to pick up either Kavanaugh or Justice Amy Coney Barrett’s vote to prevail.
At his confirmation hearing, Kavanaugh endorsed Alito’s view that Glucksberg provides the proper framework for determining which unenumerated rights are protected by the Constitution. But Kavanaugh has also written that Supreme Court precedents should only be overruled if they are “grievously or egregiously wrong.” And that the Court should ask whether overruling a past decision would upset “legitimate expectations of those who have reasonably relied on the precedent” — such as the expectations of same-sex couples who are already married.
Barrett, meanwhile, has explicitly opposed same-sex marriage in the past. In 2015, for example, she signed onto a letter to Catholic bishops embracing the church’s conservative stance on marriage disclination. According to that letter, the church’s teachings on topics that include “marriage and family founded on the indissoluble commitment of a man and a woman … provide a sure guide to the Christian life, promote women’s flourishing, and serve to protect the poor and most vulnerable among us.”
Similarly, according to the LGBTQ rights group Lambda Legal, Barrett also gave a presentation in 2016 “in which she expressed that marriage should not be viewed as a fundamental right for same-sex couples and instead should be decided on a state-by-state basis.”
But Barrett has also warned that stare decisis should not simply be ignored. In a 2016 article co-authored with scholar John Copeland Nagle, Barrett conceded that there are some past decisions that “no serious person would propose to undo even if they are wrong.” And, in a 2017 essay, Barrett suggested that the Court should avoid hearing cases that involve “the most potentially disruptive challenges to precedent.” (As a general rule, four justices have to agree to hear a case before it receives a full hearing from the Supreme Court.)
But, if Barrett’s plan is to simply dodge cases attacking decisions like Obergefell, that plan is unlikely to work for very long. Eventually, a panel of right-wing appellate judges could force the Court’s hand by issuing a decision permitting a state to ban same-sex marriages, daring the Supreme Court to leave that decision in place.
A Supreme Court showdown over LGBTQ rights, in other words, is probably inevitable. And lawyers eager to ban marriage equality or criminalize gay sex most likely start with at least three justices in their pocket.
But it is not yet clear whether they have five.
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