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Why Same-Sex Marriage May Not Be Doomed at the Supreme Court

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For many, the Supreme Court’s decision to overturn Roe v. Wade, and the immediate banning of abortion in over a dozen states, has been nothing short of traumatizing. Millions of women woke up on June 25 as less than equal citizens. Many in the LGBTQ community have also worried that we may be next, because in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas explicitly said that the constitutional right to marriage for all should be “reconsidered.” This is personal for me; if my ten-year marriage were suddenly voided, it’s not clear if my husband and I would have custody of our daughter.

Based on Justice Samuel Alito’s opinion for the majority in Dobbs, however, I think there are good reasons why the right to same-sex marriage is more secure than the right to abortion. 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.

Now, this is not to say that LGBTQ people should not be concerned about the religious right’s takeover of the Supreme Court; trans people, in particular, are being viciously targeted by a wave of anti-science, anti-compassion campaigns. Nor should the Court’s conservatives be trusted, because they all said, under oath, that Roe was settled precedent, before voting to overturn it. It is only to note that, according to Justice Alito’s own reasoning, Obergefell, the 2015 case recognizing the right of all people to marry, is very different from Roe.

Dobbs sets out a five-part test for when precedents should be overturned: 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.

The first two factors can be considered together: the nature of the precedents’ “error” and........

© Daily Intelligencer

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