The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Politico has published an insta-symposium where various legal commentators discuss the issue of whether Justice Samuel Alito's draft Supreme Court opinion overruling Roe v. Wade would also imperil other prominent precedents protecting individual rights, particularly those involving contraception, same-sex marriage, and anti-sodomy laws.
Contributors include co-blogger Josh Blackman, Prof. Mary Ann Case (University of Chicago), Prof. Mary Zeigler (Harvard), former US Attorney General Alberto Gonzales, and others. The contributions are divided between two different URLs. See here and here.
There is a wide range of views among the participants. Here is my contribution:
While such concerns [about the fate of same-sex marriage, contraception, and anti-sodomy laws] are understandable, they are overblown.
Alito's draft opinion relies on precedent holding that the Due Process Clause of the Fourteenth Amendment only protects substantive rights that are 'deeply rooted' in history. It can be argued that these other rights also lack 'deep' roots. But Alito also emphasizes that Roe is "fundamentally different" from precedents involving "intimate sexual relations, contraception, and marriage," because abortion arguably involves destruction of innocent "fetal life." This crucial difference is the main reason why Roe continues to draw vastly more opposition than these other rulings.
In addition, decisions protecting same-sex marriage and intimate sexual relations need not rely on the Due Process Clause alone. Laws discriminating against same-sex relationships also violate the Equal Protection Clause because they discriminate on the basis of sex. Just two years ago, the Supreme Court ruled that discrimination against gays and lesbians qualifies as sex discrimination under the Civil Rights Act of 1964, in a decision written by conservative Justice Neil Gorsuch, and joined by Chief Justice John Roberts. Much the same reasoning applies in the constitutional context.
Furthermore, history shows that major Supreme Court decisions protecting rights only get reversed if there is a powerful movement seeking that outcome, such as the pro-life movement in the case of Roe. By contrast, there is no longer a strong movement seeking abolition of same-sex marriage (conservative politicians rarely advocate abolition anymore, perhaps because same-sex marriage now has overwhelming public support), and even less appetite for banning contraception (which is supported by some 90% of Americans), or bringing back anti-sodomy laws.
A ruling reversing Roe v. Wade might make judicial recognition of new 'substantive due process' rights less likely. But it is unlikely to threaten major existing rights that enjoy far broader support than abortion. [highlighting added by Politico].
Interestingly, Josh Blackman reaches much the same conclusion for some of the same reasons. It's a comparatively rare point of agreement between us!