My previous blog on Roe v. Wade argued that the laws on abortion should reflect the democratic will of the public. “Roe vs Wade￼” I have personally always been pro-choice but also believed that that case needed to be made democratically. Before joining the Supreme Court judge Ginsburg stated that: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” “Scholarship Law, UNC.edu” She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. “Ruth Bader Ginsburg-Roe vs Wade”
Conservative columnist George F. Will wrote that rather than end the debate about abortion with Roe: “Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy . . . . Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.” “George Will on Roe”
I also argued, quoting Justice Alito, that revoking Roe would not endanger the Obergefell v. Hodges decision, which legalized same-sex marriages, the Loving v. Virginia decision, which legalized interracial marriages, the Griswold v. Connecticut decision, which ban restrictions on contraception, and several other cases. These decisions were also based (in part) on the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution. I argued that my right to marry a man was protected by the Equal Protection Clause of the Fourteenth Amendment. A lawyer friend, Jack Nadler, has raised some interesting challenges to this assertion and clarified for us non-lawyers the fuller meaning of applying the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
Jack Nadler is a Retired Partner in the Washington DC office of Squire Patton Boggs. While at Squire, Jack served as outside counsel for SAGE (formerly Services and Advocacy for Gay Elders), which represents the interest of LGBT older adults. Jack led the team that drafted the extensive friend of the court (amicus) brief that SAGE filed in Obergefell v. Hodges, the case in which the Supreme Court struck down State restrictions on same-sex marriage. Jack previously taught law at American University’s Washington College of Law in Washington, DC and the China University of Political Science and Law in Beijing, and served as a Law Clerk to the Hon. Joel M. Flaum on the United State Court of Appeals for the Seventh Circuit in Chicago. He is a graduate of Columbia Law School, the Columbia University School of International and Public Affairs, and Vassar College.
A Response: Why Overruling Roe v. Wade Threatens Marriage Equality
I disagree with my friend Warren’s contention that a decision to overrule Roe v. Wade, based on the rationale in Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, would not threaten the right of same-sex couples to marry. In particular, I do not agree that, even if the Court adopts the reasoning in the draft opinion, the courts would be likely to continue to uphold marriage equality under the Fourteenth Amendment’s Equal Protection Clause.
The rights of same-sex couples to marry, recognized by the Supreme Court in Obergefell, just like the right to abortion recognized in Roe, is grounded on the Due Process Clause, which provides that no State may “deprive any person of life, liberty, or property, without due process of law.” Specifically, the right of same-sex couples to marry is based on the doctrine of substantive Due Process, which provides that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain “fundamental rights” that individuals possess, regardless of what procedures the State uses.
Justice Alito’s draft opinion in Dobbs is a direct repudiation of the doctrine of substantive Due Process. The express rationale for overruling Roe is that the Constitution only protects rights that are expressly granted in its text or that are “deeply rooted in our nation’s history and tradition.” Because the Constitution does not expressly grant women the right to have an abortion, and because, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the draft opinion concludes that the Constitution does not provide this right.
The same rationale is fully applicable to Obergefell, which held that the Due Process Clause precludes the States from depriving same-sex couples of their fundamental right to marry. Indeed, in his dissenting opinion in Obergefell, Justice Alito applied the exact same standard and concluded that, because “[t]he Constitution says nothing about a right to same-sex marriage,” and because “it is beyond dispute that the right to same-sex marriage is not among those rights . . . deeply rooted in this Nation’s history and traditions,” the Court erred when it found that the Due Process Clause grants same-sex couples the right to marry.
Warren’s reliance of Justice Alito’s assertion that the Court’s decision to over-rule Roe does not affect “any other right that this Court has held fall within the Fourteenth Amendment’s protection of ‘liberty’” – including the right of same-sex couples to marry – is misplaced. The binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action. The rest of the court’s opinion is non-binding dicta. The reality is that Obergefell rests on the same substantive Due Process foundation as Roe. The Court cannot demolish that foundation in the abortion context while simultaneously preserving it in all other contexts. The Constitution either does – or does not – allow the Court to identify judicially enforceable rights beyond those expressly enumerated in the text or “deeply rooted in our nation’s history and tradition.”
I also disagree with Warren’s contention that overruling Roe and thereby “return[ing] the determination of the rules of abortion to the elected representatives in each state” is desirable because “policy in a democracy should be determined by voters and their representatives.” This is precisely the argument that the marriage equality opponents made in Obergefell. Indeed, in his dissenting opinion, Justice Alito contended that “[a]ny change on a question so fundamental [as the definition of marriage] should be made by the people through their elected officials.” The Court rejected this argument, observing that, “[w]hile the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.” Had the Court left the question of whether same-sex couples should be allowed to marry to the States, then even now the right of same-sex couples to marry likely would still be denied in many States.
The impact on marriage equality of the Court’s decision to overrule Roe must be seen in the larger judicial context. At the same time the Court is contracting the scope of the Fourteenth Amendment’s restriction on governmental infringement on personal liberty, it is also expanding the scope of the First Amendment protections for the free exercise of religion. A clash is inevitable. Indeed, in a 2020 concurring opinion, Justice Alito joined Justice Thomas in declaring that Obergefell has had “ruinous consequences for religious liberty.”
In order to address the perceived threat to freedom of religion, several of the Justices appear to believe that in any conflict between a religious person’s right to free exercise of religion and a same-sex couple’s right to marry, the “express” free exercise right must trump any “judge made” liberty right. This could have significant adverse consequences for same-sex couples. For example, a business owner could refuse to provide the same spousal health insurance coverage to a gay employee’s spouse that the company provides to its straight employees’ spouses on the ground that covering the gay employee’s spouse would violate the owner’s religious conviction that marriage is between one man and one woman. If the Court adopts this “hierarchy of rights” approach, then the State in which the company is located would be constitutionally powerless to apply its non-discrimination law to make the employer provide coverage.
I agree with Warren that same-sex marriage supporters should not be “hysterical” about the Court’s decision to overrule Roe. But I do think we should be very concerned about the potential of this decision, over time, to erode the LGBT community’s hard-won victories that have secured judicial protection of our fundamental rights, including the right to marry.
The Equal Protection Clause
Warren: As a legal layman, I always thought that my right to marriage equality rested on the Equal Protection Clause of the Fourteenth Amendment. Didn’t Obergefell hold that the restrictions on same-sex marriage violated both the Due Process and the Equal Protection Clause?
Jack: Ever since the Court struck down State prohibitions of private consensual same-sex sexual relations in Lawrence v. Texas, it has relied on substantive Due Process, rather than the Equal Protection Clause. To be sure, there is a brief section in the Obergefell opinion that essentially says that there is a “synergy” between the Equal Protection and Due Process Clauses because the denial of marriage equality is a denial of the “fundamental right to marry” protected by the Due Process Clause and a denial of a fundamental right to a specific group also violates the Equal Protection Clause. As the Court somewhat delphicly explained:
“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”
However, as I noted earlier, the binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action. The rest of the court’s opinion is non-binding dicta. The dissenters in Obergefell correctly observed that the Court had utterly failed to conduct an Equal Protection analysis, and, in any case, this finding was not necessary to resolve the case. Indeed, Chief Justice Roberts stated that the Court’s opinion had “fail[ed] to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.” Justice Thomas similarly observed that the Court had “clearly use[d] equal protection only to shore up its substantive due process analysis.”
The bottom line is that, if you take the substantive Due Process analysis out of Obergefell, the Equal Protection Clause analysis does not provide an adequate independent basis on which to strike down State restrictions on marriage equality. Consequently, if the Court eliminates substantive Due Process, the passing reference to Equal Protection in Obergefell would not be enough to support the result in that case.
Warren: Even if the Court in Obergefell did not adequately rely on the Equal Protection Clause as the basis for striking down restrictions on same-sex marriage, could the Court rely on that Clause in any subsequent challenge to marriage equality? Do you think it is worth doing so?
Jack: Unfortunately, if the Court demolishes substantive Due Process, the Equal Protection Clause is unlikely to be able to fill the gap. Under modern constitutional jurisprudence, when presented with the claim that a statute violates the Equal Protection Clause by impermissibly treating two groups differently, the Court conducts its analysis in different ways depending on which group is being treated differently.
Historically, the Court was very reluctant to find that a distinction between groups made by the legislature violated the Equal Protection Clause. So, the Court applied what came to be known as “rational basis” scrutiny. Under this highly deferential standard, regardless of the legislature’s actual intent, the Court upheld a statute if there was any possible basis on which the legislature rationally could have made the distinction. Not surprisingly, applying this standard, the Court virtually never found a legislative distinction between groups violated the Equal Protection Clause.
The civil rights movement changed things. Instead of analyzing race-based statutory distinctions under the rational basis standard, the Court ruled that such distinctions were subject to “strict scrutiny.” This meant that a race-based statutory distinction would be found to violate the Equal Protection Clause unless the legislature actually intended for the distinction to serve a “compelling purpose” and the means it chose were “narrowly tailored” to achieve the stated purpose. Very few race-based distinctions can be found constitutional under this standard.
Things got still more complicated with the rise of the women’s movement, when the Court had to decide whether to use rational basis or strict scrutiny to assess whether gender-based statutory distinctions violated the Equal Protection Clause. The Court decided that challenges to such distinctions should receive “intermediate” scrutiny. Basically, such distinctions need to serve an “important” purpose and the means used must be “substantially related” to achieving the stated purpose.
The Court has never determined what level of scrutiny to apply in cases involving statutes that make distinctions based on sexual orientation. In his dissenting opinion in Obergefell, however, Justice Alito briefly considered the Equal Protection argument, effectively applying the rational basis standard. He concluded that the States had provided a sufficient justification for distinguishing between same-sex and opposite-sex couples because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do: procreate. . . . States formalize and promote marriage . . . to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” Therefore, in his view, because same-sex couples cannot procreate, excluding them from marriage does not violate the Equal Protection Clause.
In order to use the Equal Protection Clause as a basis on which to uphold marriage equality, it would be necessary to convince the Court that distinctions based on sexual orientation should receive some degree of heightened scrutiny. In light of the history of legal discrimination against gays and lesbians, heightened scrutiny clearly is appropriate. But given that there are some objective differences between homosexuals and heterosexuals – especially the fact that our sexual unions cannot lead to procreation – some statutory distinctions conceivably could be legitimate, so strict scrutiny may not be warranted. Moreover, the level of de jure discrimination suffered by gays and lesbians, while significant, is probably closer to the level suffered by women than by African Americans, making it hard to justify strict scrutiny. Therefore, the most appropriate solution would be for the Court to apply intermediate scrutiny to sexual-orientation-based distinctions. That said, as a practical matter, given its current make-up, there is no chance that the Supreme Court would add statutory distinctions based on sexual orientation to the short list of categories that receive heightened scrutiny. A court that is prepared to shrink the reach of the Due Process Clause, is highly unlikely to expand the scope of the Equal Protection Clause.
Interstate recognition of same-sex marriage
Warren: If marriage equality is overturned and returns to a state-by-state determination, the question arises what would happen if a same-sex couple legally married in Maryland and then moved to a state in which such marriages were not allowed?
Jack: We most likely would return to the situation that existed before Obergefell, when a lawful Maryland same-sex marriage would not have been recognized in the vast majority of States where same-sex marriage was not legal. This would lead to some horrific situations. Here, based on actual experiences before Obergefell, are a couple of examples.
First, the ability of married same-sex couples to travel would be limited. Imagine that our lawfully married couple decided to go on vacation in Florida, which did not allow same-sex marriage. During the vacation, one of the spouses is hospitalized with a life-threatening injury or illness and is unable to make medical decisions for himself. If the hospitalized spouse had been married to a woman, the wife – as next of kin – would have the legal right to visit her spouse in the hospital and, if necessary, make life or death medical decisions for him. However, because the hospitalized spouse is married to another man, Florida would not consider his husband to be next of kin. As a result, he would not have the right to visit his critically ill spouse in the hospital. Even worse, the right to make life-or-death medical decision for the incapacitated spouse would go to the person that Florida recognized as next-of-kin – who may be a parent, sibling, nephew, or child from a prior heterosexual marriage, even if that person disapproves of the spouses’ relationship. That person could even requested the hospital to bar the spouse from visiting.
Second, getting a divorce would be a nightmare. Let’s say that our married friends decide to retire to Florida. However, after a few years of fun in the sun, the couple agrees to get divorced. But, because Florida doesn’t recognize their marriage, Florida won’t grant them a divorce; the State cannot dissolve a union that it does not recognize exists. Unfortunately, the couple can’t make a quick trip back to Maryland to get a divorce decree because they are no longer residents. So, unless they are prepared to take up residence in a State that recognizes same-sex marriage, they’re stuck with each other.
Warren: How could this be possible? Wouldn’t the Constitution’s Full Faith and Credit Clause require Florida to recognize a marriage lawfully performed out of state?
Jack: The answer, regrettably, is no. The Constitution’s Full Faith and Credit Clause, Art IV Sec 1, provides that every State must give “full faith and credit . . . to the public acts, records, and judicial proceedings of every other State.” The Clause also gives Congress power to “prescribe . . . the effects” of such State acts. However, notwithstanding this Clause, the courts have long held that a State need not recognize an out-of-state marriage, lawful where entered into, that contravenes the State’s public policy – such as a polygamous marriage or a marriage involving a child or first cousins.
Prior to Obergefell, a few States that did not yet have marriage equality recognized lawful out-of-state same-sex marriages. However, the vast majority did not. Indeed, a large number of States adopted constitutional amendments expressly barring recognition of such marriages. Moreover, when it enacted the infamous Defense of Marriage Act (DOMA), Congress, purporting to use its power under the second sentence in the Full Faith and Credit Clause, expressly provided that States did not need to recognize same-sex marriages lawfully entered into in other States.
DOMA’s non-recognition provision was not challenged in the Supreme Court’s Windsor case and survived the Court’s decision to strike down the portion of the law that provided that the Federal Government would not recognize same-sex marriages even if they were lawfully entered into in a State that had marriage equality. One of the two questions that the Supreme Court subsequently agreed to consider in Obergefell was whether the Full Faith and Credit Clause required States that did not permit same-sex marriage to recognize lawful out-of-state same-sex marriages. Because the Obergefell Court ruled that State had to allow same-sex couples to marry, it did not resolve the out-of-state-recognition question. Thus, if Obergefell is reversed, a State could again decline to recognize same-sex marriages lawfully entered into in another State.
Warren: It seems to me that if Obergefell is challenged on the basis that no explicit right to same-sex marriage can be found in the Constitution to which the Due Process Clause could be applied, a stronger case for applying the Equal Protection Clause could be made. If that failed, we would have to live with state-by-state determination of marriage equality and Congress could stipulate that the Full Faith and Credit provisions of the Constitution would obligate states that do not permit same-sex marriage to recognize such marriages legally obtained in other states. Public understanding of and sentiment toward LGBT people has evolved and progressed considerably from the earlier times in which restrictive and discriminatory legislation such as DOMA were first adopted. Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.
Jack: Warren believes that times have changed and that, even if Obergefell were overruled, many States would choose to retain marriage equality. He also believes that, pursuant to its express authority under the Full Faith and Credit Clause, Congress would adopt legislation requiring that every State recognize same-sex marriages lawfully performed in another State. I am far less sanguine.
Despite all the progress made, 27 States have not yet enacted statutes that expressly bar discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation. I do not want to count on these States to take affirmative action to preserve the right of same-sex couples to marry. I am particularly concerned about the many States that, prior to Obergefell, had amended their constitutions to limit marriage to “one man and one woman.” If Obergefell is overruled, these State constitutional prohibitions on same-sex marriage presumably would immediately come back into in effect. In that case, same-sex marriage would be barred in those States until such time, if ever, as the State completed the often-arduous process of amending its constitution to remove the restriction.
As for Congress, the prospect that 60 Senators would support legislation to restrict the historic right of a State to decline to recognize out-of-state marriages that contravene its public policy seems remote.
Warren: As of the middle of last year 83% of Americans supported marriage equality. Support among Republicans has risen from 40% in 2016 to 55% in June 2021. “Support for same-sex marriage in the United States by political party” Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.
Even with regard to abortion, the most recent Pew survey finds that 61% of Americans support the legalization of abortion in all or most cases. “Majority favor legal abortion” While support is stronger among Democrats, 38% of Republicans support it and almost half of Republicans under thirty do. “Senate Majority Leader Charles Schumer (D-N.Y.) late last week teed up a vote on the Women’s Health Protection Act, which would essentially codify Roe into law. The vote is expected to take place midweek. There is little drama surrounding the vote, as it will fail….” “The Hill” Why it seems destined to fail is a mystery to me, but then life is full of mysteries.