By Nate Hochman
Thursday, July 07, 2022
In an interview on NPR’s Fresh Air today, New York Times journalist Adam Liptak expressed concern that, on the heels of Dobbs, the Supreme Court is coming for gay marriage: “The logic of the [Dobbs] opinion would suggest that the right to same-sex marriage is at risk, the right not to have criminal laws against gay intimacy at risk. The right to contraception could be at risk. The right to interracial marriage could be at risk,” he told the host. “So I wouldn’t feel a lot of comfort from the bland assurance by Justice Alito, who has written very bitterly about Obergefell, the same-sex marriage case, that the court is, as a matter of principle, going to stop here.”
It’s a line we’ve heard repeatedly from progressives in recent weeks. “The Supreme Court’s ruling overturning a constitutional right to abortion sent fear through the LGBTQ community Friday, after the release of the decision set out potential targets: Supreme Court cases legalizing same-sex intimacy and marriage,” the Washington Post reported. Vox worried that “Alito’s opinion” was “a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003). On the heels of the leaked Dobbs opinion, Joe Biden himself declared: “”Mark my words: They are going to go after the Supreme Court decision on same-sex marriage.”
On one level, that alarmism is dubious on the merits. Obergefell was, in fact, a facially unconstitutional ruling: As Scalia noted in his dissent, the decision was nothing more than “a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government.” But that doesn’t mean that the Supreme Court has the votes to overturn it. Some progressives have acknowledged as much: “I think there are good reasons why the right to same-sex marriage is more secure than the right to abortion,” the left-wing legal columnist Jay Michaelson wrote in New York Magazine. “Because while the constitutional logic of Dobbs does extend to marriage equality, as I wrote in May, its jurisprudential logic — specifically, its factors for when a precedent should be upheld or overturned — does not.” Dobbs set out a “five-part test for when precedents should be overturned,” Michaelson noted: “The nature of the precedents’ error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance. While Roe and Casey (the 1992 decision upholding Roe) failed this test, Obergefell passes it.”
And yet, many powerful Democrats continue to warn that Obergefell is next up on the chopping block. “SCOTUS isn’t just coming for abortion — they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) tweeted. In a speech on the Senate floor, Senator Mazie Hirono (D-Hawaii) said: “Justice Alito is already signaling what’s next — revisiting Obergefell, the marriage equality decision. And we know so much more is at stake.” Kamala Harris echoed President Biden’s grim predictions after the Dobbs leak, arguing that “overturning Roe opens the door to restricting” contraception and “the right to marry the person you love, including a person of the same sex.” After Dobbs was officially released, Harris reiterated that the ruling “calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, the right to interracial marriage.”
But if Obergefell is truly on the precipice, as so many Democrats are arguing — why not vote to codify it?
Gay marriage is not the controversial issue that it was a few decades ago. The religious Right is not the force it once was — the Republican electorate, like the rest of the country, is increasingly secular and un-churched. As a result, its views on theologically informed issues such as marriage are more liberal: As of 2021, 55 percent of Republicans support same sex marriage. Among Americans writ large, support sat at 70 percent — a ten-point increase from 2015. In other words, it wouldn’t be politically toxic for Democrats to hold a vote on codifying same-sex marriage. If anything, as the progressive author Sasha Issenberg argued, a legislative push to codify Obergefell “might actually be politically wise for Democrats”: “The massive and still growing popularity of the gay-rights movement’s signal political achievement lets Democrats flip the script and make the culture wars work for them,” Issenberg wrote. “Reigniting the debate over same-sex marriage could give Democrats the perfect wedge issue.”
So given that there’s no political argument against such an effort, why is there no discussion of pro-gay-marriage legislation in Democratic circles? One explanation is that the Democrats are simply incompetent. As I argued on the heels of Dobbs, the party was completely unprepared for the end of Roe, despite the fact that they had months to see it coming. There’s a complacency in the party, particularly on social issues, that stems from the fact that it is simply accustomed to winning — for Democrats, notching substantive losses in the culture war is simply incomprehensible.
And yet, after Dobbs, Democrats should be prepared to face such a reality. So why isn’t there any sense of urgency — no legislative proposals, no calls for lawmakers to act — about codifying Obergefell? Incompetence is surely part of it. The more fundamental reason, however, is that they probably don’t believe what they’re saying. Alarmism is good politics; it turns out voters and drives up fundraising numbers. But we should judge a party by its actions, not its words. And the Democratic Party’s actions — or in this case, its lack thereof — stink of cynicism.
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