Don’t take gay marriage for granted

Alabama’s IVF chaos currently commands nationwide attention. But a less noticed legal aside last week is just as worrisome: A dissent by Supreme Court Justice Samuel Alito, complaining that the court’s 2015 decision requiring legal recognition of same-sex marriages has led to prejudice against those who oppose them.

The Cotton State confusion is yet another aftershock from the Supreme Court’s June 2022 decision revoking the constitutional right to abortion. The Alabama Supreme Court has ruled that frozen embryos created through IVF treatments qualify as children for the purposes of wrongful-death lawsuits. Bestowing that status on microscopic specks has put IVF treatments in Alabama in a state of frozen flux — and raised questions in a dozen or so states that are considering or have fetal personhood statutes.

The way was cleared for fetal personhood laws — and for Alabama’s ruling that a frozen embryo is a person — by the US Supreme Court’s decision, in Dobbs v. Jackson Women’s Health Organization, to overturn Roe

Justice Samuel Alito has joined Justice Clarence Thomas in expressing continued hostility toward the court’s landmark decision on marital equality.

v. Wade. In Roe, the court had held that the word “‘person’ … does not include the unborn.” The legal framework of Roe had essentially restricted any regulations or fetal protections to the post-viability part of a pregnancy. But when Roe was overturned, that framework vanished.

The high court’s reversal of abortion rights has sparked worries that other decisions based on a constitutional right to privacy may be endangered — and that’s where Alito’s dissent comes in. In the case that provoked it, several people who believe homosexuality is a sin were excluded from being jurors in a lesbian woman’s workplace discrimination lawsuit.

“That holding exemplifies the danger that I anticipated in Obergefell v. Hodges, namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government,” he wrote.

Alito seems to worry more about the expressive rights of conservative religionists than about the full rights of citizenship for those whose sexual orientation some religions frown upon. Still, his aside is noteworthy for reasons beyond the justice’s strangely apportioned sympathies.

With it, Alito has joined Justice Clarence Thomas in expressing continued hostility toward the court’s landmark decision on marital equality. Thomas has actually called for the high court to reconsider that decision as well as others decided on equal protection and privacy grounds.

In Dobbs, Alito concocted a limiting principle to allay accusations the court would do just that. Writing that the other cases didn’t involve the taking of “potential life,” he declared that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Why not? After all, Alito himself doesn’t abide by that distinction. He opposed the majority in Obergefell and, as he demonstrated last week, remains unreconciled to that ruling.

The vote in that 2015 case was 5-4. Three of the “no” votes — Thomas, Alito, and Chief Justice John Roberts — are still on the court. But of the five-justice majority, only Sonia Sotomayor and Elena Kagan remain.

The court has slid rightward with the addition of the three justices Donald Trump appointed — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — with the stated expectation they would help overturn Roe v. Wade. The trio quickly did just that.

Now, it’s possible that despite his 2015 opposition, Roberts would not vote to reverse Obergefell, given that he attaches some weight to precedent. But so adamant was his objection to the 2015 ruling that he read his dissent aloud, the single time he has done so. Even without his vote, if Alito and Thomas were joined by the Trump trio, who remain enigmatic on same-sex marriage, they would carry the day.

Pre-Dobbs, a reversal of Obergefell seemed unlikely. But that was before a high-handed court swept away a constitutional right that had existed for some 49 years, one that had been reaffirmed in 1992.

In a visit to the Globe last week, Senator Elizabeth Warren said she’s worried we’ll see the same with gay marriage. “We watched them do it on abortion and it’s clear that LGBTQ issues are now in the sights,” she said.

Some argue that won’t happen because same-sex marriage has become broadly accepted by the public. An optimist can read the passage of the Respect for Marriage Act, which grants some protections for samesex unions, that way.

But if this court took public opinion into account, it wouldn’t have completely overturned Roe but rather found a way to settle on, say, allowing state bans on abortion after 16 weeks. Instead the court swept away any remnant of constitutionally rooted abortion rights.

So though it would be grand to believe that gay marriage is safe despite the anti-Obergefell musing and mutterings of the Supreme Court’s hardest-right justices, to do so credits hope over experience. That’s why marriage equality must remain a voting issue in 2024.