Image Description: Protests in California for marriage equality. Many people are carrying boards saying “we all deserve the freedom to marry”.
The Fifth and Fourteenth Amendments to the U.S. Constitution collectively prohibit state and federal governments from depriving individuals of “liberty” without due process. For nearly a century, the Supreme Court has given substance to this vague liberty guarantee by using it as the textual source for unenumerated privacy rights. Today, “liberty” means that individuals have a right to raise their children, to procreate, to use contraception, to live with extended family members, to marry a same-sex or different-race partner, and to have private sexual relationships. Until June of 2022, liberty also meant that individuals had the right to choose to have an abortion. In Dobbs v. Jackson Women’s Health Organization, the Court—for the first time in modern history—rescinded a previously protected right rather than expand the Constitution’s liberty guarantee.
The Dobbs majority assured the American public that other privacy rights are not presently at risk. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the Court urged, because abortion is “inherently different.” Abortion “terminates life or potential life” and is therefore not like other rights that primarily affect only the right-holder. There are good reasons, however, to be skeptical of this assurance. Importantly, abortion directly parallels other privacy rights when viewed through the originalist lens the Court used to strike down Roe.
Originalism has various meanings and forms. At its core, originalism embodies the ideological view that the Constitution is dead rather than living. A “dead” Constitution, originalists argue, limits the ability of unaccountable judges to inject personal values into constitutional law. Some originalists argue that the framers’ specific intent controls constitutional interpretation. Others argue that the plain meaning of Constitutional terms as the public would have then understood them governs interpretation. The consistent theme among originalists is that understanding legal history and traditions at or close to the adoption of Constitutional texts is paramount in answering questions about the existence and scope of rights.
The Court dabbled in originalism before Dobbs. The best example is a 1997 case, Washington v. Glucksberg, where the Court applied originalism to decide whether “liberty” guarantees a right to “physician-assisted suicide.” The answer is no, the Court held, because most states prohibited this practice in 1868 when the Fourteenth Amendment was ratified.
Conversely, in 2015’s Obergefell v. Hodges, the Court clarified that there is no “test” for identifying rights, and history and tradition merely guide rather than limit. But with President Trump’s three Justices firmly entrenching a conservative majority for the foreseeable future, originalism has come roaring back. Perhaps one could view Dobbs as a truly special case if the Court isolated originalism to the issue of abortion. In two opinions issued shortly before and after Dobbs, however, the Court used originalism to find that individuals have a Second Amendment right to carry handguns in public, and a public high school football coach has a Constitutional right to pray on the field in front of players.
Making the logical and surprisingly candid connection between originalism and other rights, Justice Thomas penned a separate concurrence in Dobbs expressly calling on the Court to revisit cases like Obergefell v. Hodges, which held that “liberty” guarantees individuals the right to marry a same-sex partner. Undoubtedly seizing on Justice Thomas’s concurrence and the Court’s embrace of originalism, the Texas Attorney General shortly thereafter stated that he would eagerly defend a state ban on same-sex sodomy should the Court revisit Lawrence v. Texas—the precedent holding that “liberty” protects an individual’s right to private sexual intimacy with a same-sex partner.
Well-established and cherished rights central to LGBTQ liberty and equality are unquestionably at risk. When the Fourteenth Amendment was ratified, there was a long history and tradition in both England and the newly formed states of criminalizing same-sex sexual conduct. No state legalised same-sex marriage until the Hawaii Supreme Court kickstarted a national movement in the early 1990s. The Constitution interpreted with an originalist methodology would not support an individual right to same-sex sexual expression, nor would it support a right to marry a same-sex partner. The Dobbs majority seemingly made a political calculation that overruling the entirety of its privacy rights jurisprudence in one fell swoop would be untenable. Instead, it laid the foundation for a piecemeal chipping away. We should take Justice Thomas seriously. He at least did the public the courtesy of being honest about where the newly minted conservative majority is prepared to take us.