Jordan Woods, faculty director of the LGBTQ Law & Policy Program at the University of Arkansas, said Alito’s logic in the draft opinion largely mirrors his dissent in Obergefell v. Hodges, which established the right to same-sex marriage in 2015. In both documents, Woods said, Alito mentioned the lack of an explicit reference to the right in the Constitution, the idea that voters should decide, the lack of historical recognition of the right and the problems purportedly caused by the court recognizing the right.

As a result, Woods said, advocates who oppose same-sex marriage could use Alito’s logic as guidance for new lawsuits attempting to overturn Obergefell. Woods said he was also unnerved by Alito’s comment that appeals to people’s right to autonomy could lead to a slippery slope in which prostitution and illicit drug use are protected. The dissenting justices in the 2003 opinion that struck down a ban on consensual sex between adults of the same sex relied on a similar argument, he said…

Eyer said public opinion in the United States is so strongly in favor of same-sex marriage — 61 percent, as of 2019 — that she doubts the court has an appetite for revisiting the issue. The Supreme Court has also taken a narrow approach to the concept of fundamental rights in previous cases without eliminating other rights.

“The individual plaintiffs in these cases lose, and then the court doesn’t go anywhere with it,” Eyer said. “It doesn’t end up overturning other opinions.”