At one point in its recent decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court observed that “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain a same-sex marriage. No state constitutional provision had recognized such a right. Until a few years before Obergefell, no federal or state court had recognized such a right.”
Oops, my mistake—apologies for mistranscribing the quote. It should read “an abortion” and “Roe” in place of “a same-sex marriage” and “Obergefell.” The result of my error is a passage that could well have been taken straight out of Justice Samuel Alito’s dissenting opinion in the same-sex marriage case, Obergefell v. Hodges, decided in 2015. Both Alito’s majority opinion for the court in Dobbs, and his dissent in Obergefell, rely squarely upon the tradition-based test of an earlier decision, Washington v. Glucksberg, which rejected a claim of a constitutional right to assisted suicide and held that “substantive due process”—the oxymoronic legal rubric under which the high court has recognized libertarian individual rights in the sphere of marriage, family, and sexuality—protects liberty only when “deeply rooted in [the] nation’s history and tradition.”
As soon as the draft opinion in Dobbs leaked, left-liberal commentators rushed to offer a parade of horribles: The traditionalist logic of the Glucksberg test would imperil a whole set of rights previously recognized under substantive due process, such as the rights to enter into a same-sex marriage, to engage in same-sex relations, even to use contraception. When the full set of opinions were released, the dissenters in Dobbs—Justices Stephen Breyer, Elena Kagan, and Sonya Sotomayor, who wrote jointly—adopted exactly this line. On the opposite side, the court’s rightmost justice, Clarence Thomas, wrote in a concurrence that “in future cases, we should reconsider all of this court’s substantive-due-process precedents.”
“Traditional legal rules barred any number of consensual practices not inflicting third-party harms.”