The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Eugene's re-posting of Professor Stephen Gilles' argument about Obergefell v. Hodges in the Mississippi abortion case this Term prompted me to take a quick look at what the other briefs in Dobbs v. Jackson Women's Health are saying (and mostly not saying) about the landmark same-sex marriage decision.
There were 81 briefs on the petitioners' side (supporting Mississippi) filed in late July. Many of them unabashedly compare Roe and Casey to decisions like Dred Scott and Lochner v. New York as examples of constitutionally unsound results that caused harm and injustice.
By my count, only 11 of the 81 briefs even cite Obergefell. Of those 11, eight simply refer to a dissent in Obergefell, most commonly the one from Chief Justice Roberts, for the proposition that judges should be careful about declaring unenumerated rights lest they circumscribe too many democratic choices. But the briefs do not directly criticize the outcome or otherwise critique the reasoning of Obergefell. (Of course, I do not mean to suggest that the amicus brief authors support same-sex marriage. Many are among the most prominent opponents of it as a matter of policy and constitutional law.)
Of the three briefs that deal with the substance of Obergefell, two can be classified as relatively favorable. One of these is the brief from Professor Gilles. He writes:
Roe and Casey were not rightly decided under the 'reasoned judgment' approach as described and applied in Obergefell. The right to elective abortion was adopted and reaffirmed on the basis of specious arguments, question-begging assumptions, and inconsistent reasoning, not reasoned judgment. (p. 7)
In Gilles' view, Roe and Casey misrepresented Anglo-American history and traditions related to abortion and failed to engage the applicable precedents with "principled consistency." The implication is that Obergefell was a defensible application of the fundamental right to marry while Roe was an ugly excrescence on constitutional doctrine.
The second of the three briefs dealing substantively with Obergefell is the one for Mississippi itself. The petitioners' brief seemingly concedes the very formulation of the constitutional issue asserted by the gay couples in Obergefell.
Nor can a right to abortion be justified under Obergefell v. Hodges, 576 U.S. 644 (2015), which recognized a fundamental right to marry. Obergefell applied the understanding that when a right "is fundamental as a matter of history and tradition"—like marriage—then a State must have "a sufficient justification for excluding the relevant class" from exercising it. Id. at 671. That understanding has no relevance here, where the question is not "who [may] exercise[ ]" a fundamental right to abortion but whether the Constitution protects such a right at all. (p. 13)
The challenge for gay couples in Obergefell was to get the Court to see the claimed constitutional right in exactly this way: as the logical and experience-based affirmation of an old right (the right to marry), rather than as the a priori concoction of something new (the right to same-sex marriage).
Similarly, Mississippi posits a world of doctrinal difference between abortion and same-sex marriage (and homosexual conduct) when it comes to harm:
Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life. Cf. Obergefell, 576 U.S. at 679 ("[T]hese cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties."); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (similar). (p. 17)
Perhaps Mississippi felt it had to adopt these perspectives on Obergefell because the Court itself had adopted them. There is a difference between accepting premises for the sake of argument and actually believing those premises. Abortion opponents are already asking the Court for a monumental reversal. There's no need to add yet more to that burden.
Nobody supposes Mississippi's lawyers suddenly awoke to the merits of a constitutional right to gay marriage. And few gay marriage supporters will take much comfort in the comparative silence about Obergefell coming from Mississippi's 80 amici. Prominent LGBT rights groups and advocates warned in an amicus brief filed yesterday that overruling Roe and Casey "cannot be reconciled with this Court's decisions affirming the fundamental equality of women and of LGBTQ people." (p. 18)
But the effect of the argument being made by Professor Gilles and Mississippi is to offer the Court a way to do precisely that: overrule Roe and Casey without threatening other important precedents. Whether such efforts to distinguish Roe/Casey from Obergefell could be successful is a subject for another day.
There is, however, one notable brief supporting Mississippi that squarely takes on Obergefell–and much more besides. I'll have more to say about that in a separate post.