Alito's draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not "deeply rooted in history." https://www.politico.com/f/?id...

Alito's draft opinion gives a shout out to Amy Coney Barrett's theory that "safe haven" laws diminish the need for abortion by allowing new parents to relinquish their child lawfully. https://www.politico.com/f/?id...

Let me explain what this draft does and doesn't say about gay rights because I realize the screenshot above doesn't tell the whole story. There are parts of the opinion in which Alito parrots Kavanaugh's reasoning—that abortion is "unique" because it involves taking a "life."

And there is a portion in which Alito says: Hey, we promise this decision won't imperil other precedents. Two problems. First, he's talking about precedents that came *before* 1992's Planned Parenthood v. Casey. Lawrence (sodomy) and Obergefell (same-sex marriage) came later.

Second, the meat of Alito's opinion is a lengthly repudiation of "unenumerated rights" that are not laid out in the Constitution. The Supreme Court may only protect these rights, Alito says, if they are "deeply rooted" in history. Abortion is not. Neither is same-sex marriage.

True, Alito says: There are other rights that may not be "deeply rooted," but our precedents protect them anyway, like interracial marriage. These seem OK. This list does not include any gay rights cases, which are conspicuously separate from the precedents that Alito blesses!

Alito seems to identify the gay rights decisions as part of "a broader right to autonomy and to define one's 'concept of existence.'" That's correct; the concept of individual autonomy lay at the heart of these rulings. It's a concept that Alito totally trashes and disavows.

Then Alito says: I promise we're not jeopardizing "the cases on which Roe and Casey rely" because they are "inapposite." Here, Alito is talking about Loving (interracial marriage), contraception (Griswold), sterilization (Skinner), and raising children (Pierce). Those are safe.

But Alito actually makes it extremely clear that he is *not* including Lawrence or Obergefell in his category of safe precedents! Instead, he appears to include them as an example of illegitimate rights like abortion, which he is overruling in this very opinion!

This will not be the final version of Alito's opinion, and I think it's quite possible that Kavanaugh or Barrett will force him to soften this language. But as written, the draft is quite blithe and unflinching in its disdain for the constitutional basis of gay rights.

More on the sweeping logic of Alito's draft opinion here. Again, I think Kavanaugh or Barrett may ask him to tone it down before it's announced. Right now, it's not hiding the ball about what's next. https://slate.com/news-and-pol...