Obergefell is different. First, as law professor Kenji Yoshino recently noted, it is grounded in the Constitution’s equal-protection clause as well as the due-process clause, and thus does not trigger Justice Alito’s dubious “history and tradition” requirement. On the contrary, since (straight) marriage is unquestionably part of our nation’s history and tradition, Obergefell is about granting an existing right to all people equally, not creating a new right.
But for Justice Alito, the important distinction is that while same-sex marriage is also grounded in substantive due process, it does not “destroy potential life.” For Justice Alito, this feature of abortion was dispositive. Quoting Casey, he said, “[a]bortion is a unique act” because it terminates “life or potential life. … And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Now, the Court’s conservatives could still extend the logic of substantive due process to all cases, including same-sex marriage and mixed-race marriage. (It would be hard to explain why the Constitution protects mixed-race marriages but not same-sex ones; both were anathema at the time of the founding and the passage of the 14th Amendment.) Or they could simply decide, as Yoshino speculated, that equal-protection claims cover only race, not gender. That would be a devastating earthquake in constitutional law. But as the post-Dobbs law stands now, Obergefell is clearly distinguishable from Roe because it does not terminate “potential life.”
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