Professor Jason Mazzone was featured in a recent installment of the News-Gazette's ongoing Big 10 series, in which a panel of experts weighs in on a current issue or event. Mazzone and nine other constitutional law experts offered their insights about what we can expect in this new conservative era of the Supreme Court. His commentary follows:
“Dobbs is not the first case to curtail a right the Supreme Court previously recognized and it won’t be the last. But three unique aspects of abortion and the abortion case law make it very unlikely that Dobbs portends anything for same-sex marriage or for other rights.
“First, the political context and social context matters. Roe invalidated abortion laws in almost all states. By the time of Obergefell — the 2015 decision invalidating state laws limiting marriage to heterosexual couples — most states already had same-sex marriage in place. Roe itself changed few minds and it was followed by decades of protests — some violent — and political strategizing. Obergefell generated virtually no popular opposition.
“There is no serious political movement to overturn Obergefell anymore than to re-segregate schools or to newly ban interracial marriage. Nobody is chained to the doors of city hall to stop the issuance of marriage licenses to same-sex couples; nobody is outside churches to persuade same-sex couples not to go through with their wedding ceremony.
“Today, young voters of all political stripes overwhelmingly support same-sex marriage but are more conservative on abortion than was true a generation ago. Without a massive movement that produces new marriage bans in multiple states, getting to the Supreme Court strikes me as unlikely — and getting five votes to actually overturn Obergefell unlikelier still.
“Second, part of Roe‘s downfall was that its balancing act required the Court to decide a steady stream of additional issues about the scope of the right and the permissibility of governmental restrictions. In many of these decisions, the justices acted like medical experts or drafters of legislative code. By contrast, once the Court ruled in Obergefell that same-sex couples must have equal access to marriage, there was nothing more for the Court to decide.
“Third, and perhaps most importantly, abortion stands alone because in addition to the interests of the pregnant woman, there is other life at stake, whether — depending on one’s viewpoint — it is deemed potential or actual. Marriage doesn’t harm anyone.”
Read the full article at news-gazette.com.