In the wake of the decision in Dobbs v. Jackson Women's Health Organization, written by Justice Samuel Alito, upholding Mississippi's law banning abortion after 15 weeks of pregnancy and overturning both Roe v. Wade and Planned Parenthood v. Casey, effectively eliminating the constitutional right to abortion, many reasonably would be wondering about what's next on the chopping block?

In his concurring opinion, Justice Clarence Thomas expressly invited such speculation when he wrote that the court should reconsider all of its "substantive due process precedents," including Lawrence v. Texas, the 2003 decision that established the right to same-sex intimacy, and Obergefell v. Hodges, which legalized same-sex marriage in 2015.

In fact, both Justices Alito and Thomas previously had expressed a desire to overrule Obergefell in Davis v. Ermold. "By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix," Thomas, joined by Alito, wrote. "Until then, Obergefell will continue to have 'ruinous consequences for religious liberty.'"

That statement followed the Supreme Court's rejection of an appeal from Kim Davis, a former Kentucky county clerk who had denied marriage licenses to same-sex couples despite the 2015 Obergefell decision. Davis had cited her Christian religious beliefs, and her lawyers argued to the Supreme Court that her case came down to "whether the law forces an all-or-nothing choice between same-sex marriage on the one hand and religious liberty on the other." Although the court ruled unanimously against hearing Davis's appeal, Thomas and Alito used the opportunity to issue a severe critique of Obergefell, stating that Davis "may have been one of the first victims of this court's cavalier treatment of religion in its Obergefell decision, but she will not be the last."

So, while Justice Alito in Dobbs cautioned against reading more into Obergefell than he intended, he has already made his views clear. And as we all know, Obergefell was a 5-4 decision, and two of the justices in the majority—Ginsburg and Obergefell's author Justice Anthony Kennedy—are no longer on the court. Indeed, as the court's three most liberal members in Obergefell cautioned, the majority decision "breaches a core rule-of-law principle, designed to promote constancy in the law" and "places in jeopardy" other rights. Therefore, you don't have to be Chicken Little to be nervous.

Obergefell was based on the Constitution's 14th Amendment's due process clause, legalizing marriage equality across the country, and hundreds of thousands of couples have relied on it to wed, making it a precedent more difficult to overturn. (The U.S. Census Bureau reports that nearly 60 percent of the nation's 1 million same-sex couple households are married.) The debate over how courts should define the "liberty" guaranteed by the 14th Amendment still wages on. Some argue the amendment protects unenumerated rights, but only those deemed "fundamental" in 1868 when it was ratified, while other scholars contend that it also safeguards modern rights that are "so fundamental that the state must accord them its respect." This second conception of liberty was relied upon in Griswold, Lawrence and Obergefell, as well as other cases like Skinner v. Oklahoma (barring involuntary sterilization) and Loving v. Virginia (safeguarding interracial marriage).

As the Obergefell court explained: "The nature of injustice is that we may not always see it in our own times." Thus, the Framers "entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." The Constitution must be read to protect "intimate and personal decision[s]" that are "central to personal dignity and autonomy." In short, an "emerging awareness" of individual freedom may gain constitutional stature—even when it was not on the minds of the men who wrote the 14th Amendment.

Fortunately, Obergefell was also based on the14th Amendment's equal protection clause, making its demise a bit more challenging. Maybe some of the other Justices in the Dobbs majority, who in their recent confirmation hearings have expressed deep concerns about the wellbeing of all children, will be hesitant to walk Obergefell back and thereby make scores of children second-class citizens. As Justice Kennedy appreciated: "Without the recognition, stability and predictability marriage offers," the children of same-sex couples will "suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples."

So maybe rather than overruling it, the justices, with Justice Thomas's and Alito's statement as a preview, will carve out sweeping religious liberty exceptions to marriage equality, chip away at attendant rights, like adoption and allowing same-sex couples to be named as parents on birth certificates. These erosions may stay the court's hand to some extent. So maybe the danger is not that the right itself will be overturned, but rather, that there will be more tolerance of things that interfere with and or hinder access to the right.

In my 18 plus years on the Connecticut Supreme Court, I heard roughly 2,500 cases, and while all were important to the litigants and the law, a few (including some dissents) were especially meaningful. On October 10, 2008, the Court released its opinion in Kerrigan v. Commissioner of Public Health. In a 4–3 ruling that denying same-sex couples the right to marry violated the equality and liberty provisions of the Constitution of Connecticut, we expressly held that it would be unconstitutional to relegate same-sex couples to a status less than full marriage through civil union legislation.

In essence, we unambiguously stated that anything that enjoys a lesser status than marriage is just not equal. On Nov. 12, 2008, the first marriage licenses were issued to same-sex couples in Connecticut. From 2009 to 2019, 12,704 same-sex marriages were performed in the state of Connecticut and many since then. I officiated at some of these weddings for friends who were grateful to be able to celebrate their unions like equals and not second-class citizens. One such ceremony was for the law clerk who helped express to my colleagues what it meant to be politically powerless.

The outcome of Obergefell was the culmination of a grassroots movement that spanned more than five decades, and it seemed to have been a watershed moment for LGBTQ+ rights in America. But after Dobbs, I must admit that I'm still reeling from the acorn and worried that Chicken Little may have been on to something.

Copyright 2022. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune, reprinted by permission [].

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