Gay libertarian says Obergefell, Lawrence not at risk

Longtime gay writer (and noted libertarian) Dale Carpenter has an interesting piece over at The Volokh Conspiracy, in which he says there is plenty of evidence in the Dobbs majority opinion and concurrences that SCOTUS is not going after same-sex marriage soon:

In reaction to today’s decision in Dobbs v. Jackson Women’s Health, overruling Roe v. Wade, advocacy groups are warning about the potential implications for other rights. Some analysts are pointing specifically to Justice Thomas’s concurring opinion, which calls for a reexamination of substantive due process precedents like Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015). Certainly the three-Justice joint dissent is sounding the alarm.

Has the mask finally dropped, revealing the true intentions of the majority to wipe the slate clean of unenumerated fundamental rights that social and religious conservatives don’t like?

To begin an answer to that question, I count no fewer than four places in the Dobbs opinion that disavow any implications for other rights. I refer to these as the reassurance passages. Two of them were already in the leaked draft opinion. Two more have been added because they are responses to the dissent (which would not have been available when Justice Alito circulated his first draft in February).

The number and clarity of these passages are extraordinary.  To these one could add the separate concurrence of Justice Kavanaugh, who addresses concerns that were raised in the briefs:

First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.

(As an aside, I don’t count Justice Thomas’s view as portending much.  It’s notable that he wrote only for himself.  His views about substantive due process are longstanding, well-known, and idiosyncratic.  No other sitting justice has ever expressed an interest in completely abandoning substantive due process and all of the precedents it has generated.)

I dunno. These justices already lied under oath to get their seats on the Court. They are more political animals than any recent justices Democrat or Republican.

It’s not out of the realm of possibilities that all these caveats they’ve placed in recent decisions about abortion and guns are simply smokescreens meant to blunt outrage or fears — both of which could drive progressive turnout in the midterms. These conservative justices know that the GOP gaining control of the House or Senate pretty much frees them up to do whatever they want until the presidential election.

I hope Carpenter is correct. But I wouldn’t place bets on it.

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