Demonstrators celebrate the Supreme Court ruling in Obergefell v. Hodges (2015) which guaranteed same-sex couples a right to marry.
The Supreme Court’s recent decision in the Dobbs v. Jackson Women’s Health Organization case, which overturned the 1973 abortion rights ruling in Roe v. Wade, gestured in two directions on the question of whether the Court might similarly overturn past precedents in cases addressing sexual intimacy, contraception, and marriage. On the one hand, Justice Samuel Alito’s majority opinion argued that abortion, because it involves the destruction of human life, is exceptional, meaning that Dobbs would not necessarily be followed by decisions that limit the scope of the Court’s recognition of other constitutional rights. On the other hand, Alito suggested that Dobbs might very well have such implications. According to the originalist reasoning of the Dobbs majority, abortion rights were not generally recognized when the 14th Amendment, ratified in the 1860s, stipulated that state governments could not deprive people of their life, liberty, or property without due process of law. Alito also relied on language that the Court has used for decades when determining which liberties are protected by the 14th Amendment: according to these precedents, only rights “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” are protected. These parts of Alito’s opinion suggested that other recognized rights might very well be at risk.
In the aftermath of Dobbs, historians have strongly criticized Alito’s claims about the legal status of abortion in the 18th and 19th centuries. According to the clear scholarly consensus, pre-quickening abortions were legal in early U.S. history and only were criminalized in the mid-nineteenth century, beginning in the 1840s and increasingly during and after the 1860s. This is important not only because of what it says about traditional rights at the moment when the 14th Amendment was adopted but also because of what it says about traditional rights in the 1790s, when the 1st, 4th, 5th, and 9th Amendments, all of which were invoked in Roe, were ratified. In fact, Alito and the Dobbs majority basically sidestepped the 9th Amendment, even though that’s the one that recognizes rights not explicitly mentioned in the Constitution.
While many historians have criticized Alito’s claims about the legal status of abortion in early America, many legal commentators have warned that the Court may soon revisit its precedents on birth control, sexual privacy, and marriage. I do not want to discount this possibility, which I think is very real, but I would like to suggest a different way to think about this. As a cynic and pessimist, I do not generally avoid dire predictions about the future, but it is at least possible that several of the Court’s conservatives might be open to persuasion. After all, Chief Justice Roberts has broken with the Court’s conservatives in several important cases, and Justice Gorsuch voted in favor of LGBT rights in Bostock and Justice Kavanaugh did so in the recent Yeshiva University case. Moreover, while it is not likely that the current Court will revisit Dobbs any time soon, there will hopefully come a time when new appointments will allow for that possibility. When that happens, those of us who support sexual and reproductive justice should be ready with the best possible arguments.
My thinking about these issues grows out of the work I did for my 2010 book Sexual Injustice. That book looked at six major rulings from 1965 to 1973, juxtaposing five liberalizing decisions on birth control (Griswold and Eisenstadt), obscenity (Fanny Hill), interracial marriage (Loving), and abortion (Roe) with a profoundly conservative ruling on gay immigration (Boutilier). Challenging the notion that the Court of that era supported a broadly libertarian vision of sexual freedom, I argue instead that the justices developed a doctrine of heteronormative supremacy, extending special rights and privileges to heterosexual, marital, and reproductive forms of sexual expression but denying such protection to same-sex, nonmarital, and non-reproductive sex.
With respect to Griswold, for example, commentators today routinely describe the Court’s ruling as a foundational decision on sexual privacy, but the majority opinion in that case did not use those words or endorse that concept. Over and over again, the Griswold majority followed the lead of the American Civil Liberties Union and Planned Parenthood lawyers, who strategically emphasized that Connecticut’s birth control law violated marital rights. As Justice William O. Douglas declared in the majority opinion, “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
Two years after the Court invalidated birth control laws that interfered with the rights of married couples, the justices overturned state laws against interracial marriages. When they did so in Loving v. Virginia, there were two principal reasons. First, anti-miscegenation laws violated the right to marry, which the justices saw as a liberty protected by the 14th Amendment’s due process clause. Second, those laws violated the 14th Amendment’s equal protection clause, since they discriminated based on race. At this point, nothing the Court had said or done suggested that it was prepared to recognize sexual rights or reproductive rights for the unmarried, and in multiple cases the justices referenced, in dicta, the ongoing constitutionality of laws against adultery, fornication, homosexuality, and sodomy.
In the years that followed Loving, the Court was remade as President Richard Nixon replaced four liberal justices with appointees expected to be much more conservative. At this point, there was every reason to anticipate that the liberalization process seen in decisions such as Griswold and Loving would not continue. And yet it did. This brings me to the 1972 ruling in Eisenstadt v. Baird. This year marks the fiftieth anniversary of Eisenstadt, a decision far less well-known than Griswold, Loving, or Roe. Yet there are aspects of Eisenstadt that are worth revisiting when we contemplate the post-Dobbs landscape.
In 1967, William Baird was a controversial reproductive rights activist, long at odds with both the ACLU and Planned Parenthood, when he was invited by Boston University students to give a campus lecture. In advance of the event, the local chapter of Students for a Democratic Society rented a large hall and Baird provocatively announced that during his lecture he planned to break a Massachusetts state law banning the display or distribution of contraceptives for purposes of preventing conception, with an exception for health care professionals who provided birth control to married people. Approximately 2000 students attended the lecture, which concluded with Baird’s very public distribution of birth control to approximately twenty people. Wanting to be arrested so that he could challenge the state law in court, Baird called on the police in attendance to do just that, which they did.
After the Supreme Court agreed to hear the case, they voted six to one in favor of Baird (there were just seven votes because two justices had resigned and not yet been replaced. Only Chief Justice Warren Burger dissented). Of the six who voted in favor of Baird, two (Justices Byron White and Harry Blackmun) did so because there was no clear evidence that the women given birth control were unmarried, meaning that the outcome was basically determined by Griswold. The majority of four, however, went well beyond this. The key passage in Justice William Brennan’s majority opinion, which was endorsed by Justices William O. Douglas, Thurgood Marshall, and Potter Stewart, explained, “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals…. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
While this passage suggested that there were two reasons to strike down the Massachusetts law—equal protection and due process privacy rights—the majority opinion later placed emphasis on the former rather than the latter. In one passage, Brennan argued that the Court need not decide whether the law infringed on “fundamental freedoms under Griswold” because it “fails to satisfy even the more lenient equal protection standard.” In another, he declared that “we need not and do not…decide” whether the law could be upheld as a morality-based prohibition on contraception because “whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married.” These passages grounded the ruling in equality, rather than privacy, arguments. Further evidence for this can be found in the amount of attention the Court paid to the justifications offered by the state to legitimize its discriminatory treatment of the unmarried. In response to the state’s claims that such discrimination was rational and justified because of the state’s interest in promoting marital fidelity and discouraging nonmarital sex, Brennan pointed out that the law did not block married people from using birth control with people other than their spouses and the law also did not block the distribution of contraceptives to prevent the spread of disease. For the majority of four, the Massachusetts law thus failed the Court’s “rational basis” test in equal protection cases.
In short, the Eisenstadt decision held that married people had birth control rights and that unmarried people, at least with respect to birth control, could not be discriminated against on the basis of marital status when the discrimination had no rational justification. Eisenstadt becomes even more interesting to consider if we situate it not only in the line of reproductive rights decisions that began with Griswold and continued with Roe, but also in relation to decisions about the rights of the unmarried. Twelve days after the Court ruled in favor of Baird, it announced its decision in Stanley v. Illinois. Peter Stanley was an unmarried father who had lived on-and-off with his partner Joan and their three children for eighteen years. On Joan’s death, Peter automatically lost custody of his two younger children and was denied a parental fitness hearing because the state only guaranteed such hearings after the death of a custodial parent for mothers, divorced fathers, and married fathers. When the case reached the Supreme Court, five of seven justices ruled in favor of the due process reproductive rights of the father; four of seven also ruled in favor of his equal protection rights. While the Court did not make it clear whether Stanley had been denied equal rights based on sex or marital status, the strong implication was that four justices thought it was both. One year later, the Court ruled in favor of the reproductive rights of another unmarried person, Norma McCorvey, otherwise known as Jane Roe.
In subsequent decades, the Supreme Court developed a mixed record in cases about marital status discrimination. Today, many federal civil rights laws do not offer protection based on marital status discrimination; about half the states have such laws, but they generally apply only in specific domains, such as employment, housing, and credit. Indeed, in the Supreme Court’s same-sex marriage decisions, Windsor in 2013 and Obergefell in 2015, the justices emphasized (without criticism) that there were more than a thousand federal statutes that granted special rights and privileges to married people. Discrimination based on marital status remains constitutional and legal in many contexts. There nevertheless may be promising lines of argument about marital status discrimination that could advance sexual and reproductive rights in the years to come.
It is at this point that I want to return to the opening that Justice Alito’s Dobbs opinion provided when it distinguished between abortion rights, which the Court’s conservatives incorrectly claimed were not protected in early American history, and other rights that were recognized in the 1790s or 1860s. While I am no fan of the legal system’s privileging of marital relationships, it is likely that a majority of the current Supreme Court would acknowledge that the right to marry was generally recognized when the Bill of Rights and 14th Amendments were ratified; think about Justice Douglas’s claim that marital privacy rights were recognized before the Bill of Rights was added to the Constitution. This potentially provides a way to distinguish between abortion rights and marital rights. In a future case that challenges Loving, Obergefell, and Windsor, the justices presumably would have to ask whether limitations on the right to marry can survive the heightened scrutiny that the Court typically applies in cases of race and sex discrimination. The majority may be willing to accept the right to marry by interracial and same-sex couples because of the 14th Amendment’s equal protection clause, which has not been as constrained by originalist interpretations as the due process clause has been.
By the same logic, if married couples have sexual rights that are protected against interference by state and federal governments, perhaps one or two conservative justices will accept the validity of Lawrence v. Texas, which struck down state sodomy laws, on equal protection grounds. If married people have rights to engage in consensual private sex, there may be no rational reason to deny such rights to unmarried people. In this way, the sexual and reproductive rights of unmarried people would not be recognized because they have these rights intrinsically, but rather because unmarried people cannot be discriminated against without rational justifications. In short, it may be more promising, as we face the post-Dobbs landscape, to pursue arguments about equal rights than to pursue arguments about sexual or reproductive rights. Similar points have long been made by progressive critics of Roe v. Wade, including Ruth Bader Ginsburg, who wished that the 1973 Court had placed more emphasis on equal rights and sex discrimination rather than due process and reproductive freedom. In this respect, perhaps one of the weaker and more vulnerable parts of Alito’s majority opinion in Dobbs was his insistence that a “state’s regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.” We might now recognize, thanks to trans activism, that men can get pregnant, but the vast majority of people who seek abortions are women, and it is difficult to think of another realm of state law that has more obviously disparate impacts on women.
Looking beyond the legal domain, I think there might also be positive political possibilities for generating popular public support for laws that support the reproductive and sexual rights of the unmarried. Progressives clearly need to continue building public support for abortion rights and reproductive justice, but imagine the possibilities for political mobilization if we communicate more effectively than we have that the Roberts Court might permit the recriminalization of birth control, oral and anal sex, and nonmarital sex for straight people. Some conservatives might be happy with this, but other conservatives and many moderates, threatened with restrictions on their freedoms, might come around to support “liberty and justice for all.”
This is a revised version of a presentation delivered at “Rights and Wrongs: A Constitution Day Conference at San Francisco State University” on September 16, 2022.