Since the United States Supreme Court’s Dobbs decision, which overruled Roe v. Wade and returned the regulation of abortion to individual States’ legislatures, speculation has been rife about the future of other controversial landmark decisions, including Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. In the process of invalidating States’ laws prohibiting the distribution or ownership of artificial contraceptives, the 1965 Griswold case fabricated a “right to privacy” from “penumbras, formed by emanations” of expressly enumerated Constitutional rights. In 2003, the Lawrence case similarly invalidated States’ laws that criminalized sexual acts broadly defined as “sodomy”. In the 2015 Obergefell case, the Court declared that States’ laws limiting legal marriage to a union of one man and one woman could no longer be enforced, effectively forcing States to sanction same-sex marriage and to recognize such marriages from other jurisdictions.
Like Roe, the Griswold, Lawrence, and Obergefell decisions invoked the oxymoronic “substantive due process” standard to declare that, respectively, denying lawful use of contraceptives, criminalizing certain kinds of sex acts, and preventing same-sex marriage are unconstitutional denials of privacy or liberty interests. The three dissenting justices in Dobbs, recognizing that Griswold, Lawrence, and Obergefell were decided on the same substantive due process grounds as Roe, complained that Dobbs portends revisiting the earlier decisions, thus jeopardising other supposedly settled rights. Abortion “does not stand alone”, they asserted. Because Roe was rooted in so-called substantive due process, “the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation”. These privacy cases “are all part of the same constitutional fabric”, the Dobbs dissenters continued, throwing the future of Griswold, Lawrence, and Obergefell into doubt.
While justice Alito’s majority Dobbs opinion expressly limited Dobbs to abortion, Justice Clarence Thomas fuelled debate about the future of these substantive due process decisions in his concurring opinion in Dobbs. Similarly recognizing the common foundation in these cases as the three dissenters, Justice Thomas expressly called for the Court to revisit and overrule them. The Court “should reconsider all . . . substantive due process precedents, including Griswold, Lawrence, and Obergefell”, Thomas bluntly declared. While he did not go so far as to say that the Court should reverse the earlier decisions—they might be protected under alternative reasoning—he did call for the Court to abandon “substantive due process” as “an oxymoron that lack[s] any basis in the Constitution”.
Given these dissenting and concurring opinions in Dobbs, conjecture about the future of Griswold, Lawrence, and Obergefell is not surprising. It is highly unlikely that any of them will be reversed, however, at least by the current Supreme Court.
As a threshold matter, the Supreme Court, like all federal courts, may not issue spontaneous or advisory opinions, but may only rule on “cases and controversies”, originated and prosecuted by litigants. Limited by specific Constitutional previsions, the Court may not reconsider prior rulings or otherwise make decisions unless cases are put before it. Thus, for the Court to revisit the other controversial substantive due process decisions, two things must occur. First, a State must enact legislation that contradicts one of the cases. Second, a plaintiff must initiate a lawsuit challenging the legislation. As to Griswold, it is unimaginable that any State will institute a law prohibiting the distribution, possession, or use of artificial contraception. Legitimacy of the use of contraception is too broadly and deeply held by the American public (including by professed Catholics) for any State legislature to have the votes to criminalize it. It is similarly unlikely that any State would criminalize sex acts broadly included under the term “sodomy”, as they are not limited to same-sex sexual activity. Whether found in the Constitution or not, the American public very broadly recognizes the privacy of such acts and has no will to prohibit them in law.
It is less certain, on the other hand, that some States may not attempt to challenge the holding in Obergefell, by implementing legislation limiting marriage to one man with one woman. Unlike arguably private sexual acts, same sex marriage has broad public implications, raising legitimate public concerns about the nature of marriage, adoption and foster care, child-bearing and rearing, and other government interests. Thus, it would not be terribly surprising for a State to prohibit same sex marriage, solely for the purpose of challenging Obergefell. Even so, however, it is extremely unlikely that the current composition of the Supreme Court would overrule Obergefell and permit such a law to stand.
Unlike Roe, Obergefell has created a thick, complex network of social relationships, the undoing of which would create very high social costs. Social institutions of inheritance, insurance benefits, adoption, parental rights, alimony (or divorce-related spousal support), and similar public and private contracts have already built up around same-sex marriage. These “reliance interests” created by Obergefell would very likely persuade at least five current justices that its reversal would cause the kinds of social chaos that principles of stare decisis are designed to avoid, even if Obergefell (like Roe) was wrongly decided. This is not to suggest that a challenge might not arise. But it is likely that it would survive. Thus, even under the strength of Dobbs, other “substantive due process” decisions of the Court are not likely to be overruled, at least by the current Supreme Court, or any reasonably foreseeable constitution of the Court.
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