In 1905, the Supreme Court decided a case based on the violation of a New York law by a German bakery owner named Joseph Lochner, who operated a single shift of workers, causing one employee to work very long hours. This move was technically illegal, given that New York had decided in 1895 that bakeries could not require employees to work more than sixty hours a week. The Court ultimately sided with the owner, invalidating the law using substantive due process, a legal doctrine that would prove consequential in establishing many of the rights of personal autonomy that we know as fundamental today.
While procedural due process, which is found in the Fifth and Fourteenth Amendments of the Constitution, prohibits the government from depriving “life, liberty, or property, without due process of law,” substantive due process goes even further, allowing judges to protect what they view to be fundamental rights not explicitly stated in the Constitution. In the mid-twentieth century, the Supreme Court began using substantive due process to grant a series of rights based on personal autonomy and privacy. This included the right to access contraception in 1965, the right to interracial marriage in 1967, and the right to same-sex sexual activity in 2003. Substantive due process also famously undergirded the 1973 decision in Roe v. Wade that legalized abortion nationwide, ushering in an era of federally protected reproductive rights that ended in 2022, when the Supreme Court effectively eliminated the Constitutional right to abortion in its decision in Dobbs v. Jackson Women’s Health Organization.
After Dobbs, thirteen states immediately passed trigger bans outlawing abortions, dozens of clinics across the United States stopped providing abortions, and the number of people who crossed state lines to access abortions doubled. The number of women suffering preventable deaths due to states banning abortions has also risen, alongside the number of doctors refusing to provide abortion care under the threat of criminal charges.
But there is another, more indirect threat that has arisen from the Dobbs decision. The majority opinion in Dobbs was clear that it was overturning the right to abortion specifically, restraining from implying that any other rights were in danger. But in a concurrent opinion, conservative Justice Clarence Thomas wrote that the Supreme Court “should reconsider” similar personal autonomy cases built on the same precedent of substantive due process. The statement sent shock waves across the country. In response, then President Joe Biden said that “a whole range of rights” would be “in question” if Thomas’s argument were pursued by the Court.
Thomas’s opinion in Dobbs led many people to fear a possible domino effect, with other fundamental rights stemming from substantive due process under threat if new court cases were to challenge existing precedents. One of those precedents is Obergefell v. Hodges, which established the right to marriage for same-sex couples in 2015. Ever since, overturning Obergefell has been a particular goal of the conservative movement, and after Thomas’s opinion, many LGBTQ+ advocates feared that the right to same-sex marriage would no longer be guaranteed.
“Obergefell rests on substantive due process,” says Andy Izenson, staff attorney at Harvard Law School’s LGBTQ+ Advocacy Clinic. “So it’s not inconceivable that a Supreme Court case is going to arise in the next little while in which someone decides, ‘Well, we challenged Roe, and it worked, so let’s challenge Obergefell under the exact same ground.’ ”
Illustration by Hannah Good
Marriage confers more than 1,000 specific legal privileges, including tax, insurance, and family law benefits that other partnerships do not legally protect. Married couples, for example, can receive their spouse’s insurance and government benefits, and make life-or-death medical decisions if their partners become incapacitated. Couples that aren’t legally married aren’t guaranteed the same legal benefits.
In the decade since Obergefell, court cases across the country have tried to overturn the right to same-sex marriage. Last fall, a case attempted to penetrate the Supreme Court, stoking panic that the Obergefell domino could indeed topple. In Davis v. Ermold, petitioner Kim Davis, a county clerk in Kentucky who had refused to issue marriage licenses to same-sex couples in 2015, asked the Supreme Court to overturn Obergefell, claiming that it had “no basis in the Constitution.” She had been locked in a legal battle for almost a decade after being sued and jailed for refusing to issue the licenses, continually appealing the original case against her to request that the Court reconsider Obergefell.
But the Court quietly declined to take up Davis’s case without so much as a comment. As legal experts have pointed out, this may signal less about the Court’s willingness to roll back rights and more about the weakness of Davis’s individual case, which did not originally challenge Obergefell in trial court and only tacked it on during the appeal.
It also signals an unwillingness to challenge Obergefell on the part of the other Justices who do not seem particularly swayed by Thomas’s argument, says Rutgers Law School professor Katie Eyer. Apart from the specific wording in Justices Samuel Alito and Brett Kavanaugh’s opinions in Dobbs that rejects using the same precedent to overturn other cases, Justice Amy Coney Barrett recently told The New York Times that the right to same-sex marriage falls under a different category of consideration than abortion, given that people have already married and had children under Obergefell. Additionally, Eyer points to the cases over the decades that have regressed rights even during eras of greater civil rights expansion, creating “a long-standing sort of back and forth.”
“I think for many people who know that longer history, this looks like certainly a retrenchment for now, but not necessarily the end of the story,” Eyer adds.
Nevertheless, Obergefell, as well as other rights established by substantive due process, are targets of the far right after Dobbs. “They are eager to use Dobbs as a weapon,” says Camilla Taylor, deputy legal director for litigation at Lambda Legal, which focuses on LGBTQ+ litigation. “But so far, they have not had any success in persuading appellate courts that Dobbs should be extended in that way.”
Regardless of the Court’s unwillingness to go after Obergefell, or even the possibility that another relevant case could make its way up to the highest legal level, Eyer says the Court has “gradually nickeled and dimed” other personal rights once seen as fundamental under the guise of other rulings. Applied to the right to same-sex marriage, “it’s much more likely to be that more subtle, less headline-grabbing, but still significant sort of limitation on where the right can be invoked in ways that could limit how helpful the right is but doesn’t actually prevent people, say, from getting married,” Eyer says.
The Movement Advancement Project (MAP), a nonprofit think tank that researches anti-LGBTQ+ discrimination, has been tracking anti-LGBTQ+ legislation across the country since 2006. MAP creates scores for each state by measuring equality on the basis of gender identity, sexual orientation, and overall policy, as well as more specific issues like nondiscrimination laws, access to correct identity documents, and conversion therapy legislation.
“The same way that the far right has spent years and sometimes decades working to chip away or erode the right to abortion and reproductive health care, or other policies like affirmative action and voting rights,” says Logan Casey, MAP’s director of policy research, “the far right is similarly targeting LGBTQ+ rights at the state and local level.”
Casey points to gerrymandering as creating increasingly extreme and conservative state legislatures, allowing anti-LGBTQ+ bills to become law, often with few obstacles. When these laws are legally challenged, conservatives attempt to “work [the cases] way up the judiciary,” which Casey says is increasingly conservative at the federal level.
Both Taylor and Eyer emphasize that outside of the Supreme Court, Executive Orders by the Trump Administration have forcefully targeted trans people, threatening organizations, schools, and health care facilities that provide gender-affirming care or have instituted nondiscrimination protections for trans people, including attempts to block funding for those who do not comply. “They have shown a ferocity against trans people that is unlike anything we have ever seen against LGBTQ+ people in this country,” Taylor says.
In recent years, conservatives have shifted from targeting same-sex marriage to targeting transgender people. “The conservative movement has not actually been targeting the freedom to marry with the same vigor that it’s been attacking trans people,” says Taylor. “And this is something of a surprise, because in the first Trump Administration, same-sex couples and the freedom to marry were a target.”
This has taken place across many levels of governance, from the local and state level as MAP notes, to the anti-trans Executive Orders written by the Trump Administration, to various Supreme Court cases that have harmed trans people.
According to Eyer, trans people are particularly susceptible to negative Supreme Court outcomes because there are few cases that have established precedent for them as a group. Many “actively regressive anti-trans measures,” Eyer says, do not fall under “the existing precedents benefiting LGBTQ+ folks, because there is not such a robust substantive due process jurisprudence around trans folks to begin with.”
Illustration by Hannah Good
The conservative-majority Court has, in recent cases, invoked substantive due process to strip rights from trans children. In its March decision in Mirabelli v. Bonta, the Court granted parents in California the right to know if their children are using a different name or pronouns at school, using substantive due process to define the right of parents to be involved in their children’s mental health decisions. But just a year prior, in United States v. Skrmetti, the Court refused to define this same right and instead terminated the ability of parents to help their children access gender-affirming care in Tennessee. Skrmetti ultimately approved a Tennessee law that limits medical care for trans youth by avoiding addressing whether the care was banned based on sex or “because they were transgender,” according to the Brookings Institution. Instead, the Court applied a lower level of scrutiny by deciding that Tennessee was limiting the care based on “age and medical use.” According to Carlos A. Ball, a law professor at Rutgers Law School focusing on LGBTQ+ and Constitutional law, Skrmetti is evidence of the current Court’s proclivity to decide “Constitutional issues in ways that are consistent with the policy preferences of the Republican Party.”
Eyer believes the Court mischaracterized the Tennessee law in question in its decision on Skrmetti. The ruling claimed that the same instances of medical treatment sought by both cisgender and transgender people can be considered different medical treatments because the underlying cause would be different; for trans people, treatment would arise from a specific diagnosis of gender dysphoria or incongruence. Regardless of this argument on the Court’s behalf, the Tennessee law specifically denies treatment “inconsistent” with one’s sex assigned at birth—not based on any different underlying medical conditions.“If a student would have given me that opinion as an exam answer on a similar hypothetical,” she says, “I would have given it a D.”
For families at risk of being impacted by the Court’s attacks on LGBTQ+ rights, the uncertainty has had a palpable impact on everyday life. Izenson cites Braschi v. Stahl Associates Company—a 1989 New York Court of Appeals case in which plaintiff Miguel Braschi successfully fought eviction from the rent-controlled apartment of his partner, who had died from AIDS complications—as fundamental to their work as an LGBTQ+ family lawyer and advocate. The New York Court of Appeals ruled that Braschi and his partner constituted a family given their long-term relationship and emotional and financial interdependence, meaning Braschi was therefore entitled to remain in the apartment.
“Family is about how you live, whether or not it’s something that we could call a marriage, or something you can call a parent-child relationship under existing law,” Izenson says. Furthermore, the case opened up family law to begin considering same-sex couples as family members, and paved the way for future relationship-recognition cases. “We know what family is when we see it,” Izenson says, “and we need to recognize and respect it when we see it.”
Izenson points out that marriage, for all its protections and its place as “the primary focus of the vast majority of the gay rights movement,” is not necessarily everyone’s goal or realistic family structure.
“There are all these benefits and protections that are available to a relationship that is under that marital umbrella,” Izenson says of marriage protections like spousal insurance and medical decision-making power. “But what if some of those benefits and protections, which we have sort of agreed are common goods, were actually available more broadly?”
As for Obergefell, Izenson points out that “there have been robust and mutually supportive and life-affirming queer relationships and community forever. The federal recognition of same-sex marriage is a very, very recent addition to that. I think it’s alarmist to say that if we lose Obergefell, we’ll lose everything.”
Similarly, Eyer emphasizes that as reproductive rights activists shifted “toward private, mutual support networks,” transgender people are “familiar with” the same strategies, including mutual aid, hotlines, and support organizations, given that it was “only very recently that transgender people have been able to get access widely through health care systems.”
Gaining widespread rights for trans people in the United States in the same way that same-sex relationship rights were won, however, requires broader acceptance among the general public. Americans have complex and varied opinions about gender identity which do not always follow party lines, according to research by the Pew Research Center.
“We’re in a time where a lot of Americans believe that they don’t know anyone who’s transgender, let alone love someone who’s trans, they have yet to meet them, and we went through this when we were advocating for the freedom to marry,” says Taylor. “We haven’t reached that yet with respect to the transgender community . . . . Republicans have used anti-trans legislation in a very cynical way as a distraction, and they’ve created a boogeyman, and that’s deeply harmful for this marginalized population, but it’s also not something that anti-LGBTQ+ forces will be able to do forever.”
Until the United States reaches that point, which seems like a vanishing horizon in the face of so much vitriolic anti-trans rhetoric from the far right, many activists like Izenson are working to build strong enough support networks to resist the ebbs and flows of Supreme Court decisions, state-level legislation, and Executive Orders that expand and strip rights seemingly at whim.
“We keep one arm stretched out to a future where all of this work becomes unnecessary because we’ve fully transformed the legal landscape,” Izenson says. “We’re taking these small steps focused on the material conditions of individual members of our community, and how we can extend care to them. How can we make their lives a little more like they would be if we had already won?”