Is there a decent chance SCOTUS won’t overturn Obergefell v. Hodges and Lawrence v. Texas?

[I’m not Stu]

Is there a decent chance they don’t get overturned?

[TheFonz]

There is zero chance they do get overturned

[Schiff for Senate]

I'd call 100% a decent chance, yes.

[Vosem]

I don't think there's any chance they overturn Lawrence, which certainly Kavanaugh, certainly Roberts, probably Gorsuch, and probably Barrett would all sustain. I think the odds that they overturn Obergefell are, like, 10%, but that seems more real for a number of reasons. There are plenty of ways to read the Constitution which imply the decision in Lawrence, but I think Obergefell (and for that matter Roe) are much more blatantly made up.

[NewYorkExpress]

I think pretty much every Supreme Court decision up to and including Dred Scott v. Sandford is in theoretical danger of being overturned by this court, however, I find any chance that is not 100% to overturn to be a decent chance, so I voted yes in the poll.

[politicallefty]

I don't think there's any chance they overturn Lawrence, which certainly Kavanaugh, certainly Roberts, probably Gorsuch, and probably Barrett would all sustain. I think the odds that they overturn Obergefell are, like, 10%, but that seems more real for a number of reasons. There are plenty of ways to read the Constitution which imply the decision in Lawrence, but I think Obergefell (and for that matter Roe) are much more blatantly made up.

I suppose I could be wrong, but I just don't think the Court wants to reopen those issues. There's a lot I think this Court wants to go after, but I think they'll just avoid the issue.

I'm more confused as to how you think Lawrence is perfectly sound while Obergefell is not. If there's one major issue I have with Obergefell, it's that it didn't have a more solid foundation in the Equal Protection Clause itself as opposed to relying more on the Due Process Clause. Do you share Justice O'Connor's view in her concurrence in Lawrence?

[Vosem]

I don't think there's any chance they overturn Lawrence, which certainly Kavanaugh, certainly Roberts, probably Gorsuch, and probably Barrett would all sustain. I think the odds that they overturn Obergefell are, like, 10%, but that seems more real for a number of reasons. There are plenty of ways to read the Constitution which imply the decision in Lawrence, but I think Obergefell (and for that matter Roe) are much more blatantly made up.

I suppose I could be wrong, but I just don't think the Court wants to reopen those issues. There's a lot I think this Court wants to go after, but I think they'll just avoid the issue.

I'm more confused as to how you think Lawrence is perfectly sound while Obergefell is not. If there's one major issue I have with Obergefell, it's that it didn't have a more solid foundation in the Equal Protection Clause itself as opposed to relying more on the Due Process Clause. Do you share Justice O'Connor's view in her concurrence in Lawrence?

Basically, yes; I also think there's a general shift towards the Court interpreting privacy rights in a more broad way that's taken place in the 2010s, such that it's really difficult for me to see Lawrence overturned.

By contrast, the thing with Obergefell is that no conservatives really think it was decided correctly and it's protected entirely by a lack of desire to rehear the matter or reopen the controversy. Given the Senate makeup the judiciary is broadly continuing to get more conservative over time, and while I think Obergefell is fine with the current Court I really don't know how it might fare in a court that's 7-2 or 8-1 conservative.

[Ferguson97]

Obergefell v Hodges? It's not out of the question, but I'm leaning towards no.

Lawrence v Texas? I would be shocked.

[I spent the winter writing songs about getting better]

100% is a "decent chance" so yes, primarily because no state is going to attempt to pass laws in contravention of those decisions and challenge them all the way to the SCOTUS.

[President Punxsutawney Phil]

100% is a decent chance. So I voted yes.

[BGBC]

I think pretty much every Supreme Court decision up to and including Dred Scott v. Sandford is in theoretical danger of being overturned by this court, however, I find any chance that is not 100% to overturn to be a decent chance, so I voted yes in the poll.

Dred Scott has already been overturned?

[Fuzzy Bear]

I think pretty much every Supreme Court decision up to and including Dred Scott v. Sandford is in theoretical danger of being overturned by this court, however, I find any chance that is not 100% to overturn to be a decent chance, so I voted yes in the poll.

Dred Scott has already been overturned?

Dred Scott has never been overturned; it has been rendered moot by the 13th amendment.

[progressive85]

I wouldn't be surprised if everything that progressives have won is reversed in the next decade.  Which means Constitutional Amendment Time.

[Associate Justice PiT]

I wouldn't be surprised if everything that progressives have won is reversed in the next decade.  Which means Constitutional Amendment Time.

     The bar to pass a Constitutional Amendment is extremely high and virtually impossible to meet without broad bipartisan support. Seems like a very difficult way of circumventing the Supreme Court.

[SnowLabrador]

No, they're both going down. Having most peoples' rights depend on one election is a ridiculous way to run a country that claims to be a democracy. Hillary was right: Trump's voters are deplorables.

[politicallefty]

Basically, yes; I also think there's a general shift towards the Court interpreting privacy rights in a more broad way that's taken place in the 2010s, such that it's really difficult for me to see Lawrence overturned.

By contrast, the thing with Obergefell is that no conservatives really think it was decided correctly and it's protected entirely by a lack of desire to rehear the matter or reopen the controversy. Given the Senate makeup the judiciary is broadly continuing to get more conservative over time, and while I think Obergefell is fine with the current Court I really don't know how it might fare in a court that's 7-2 or 8-1 conservative.

I was more getting at as to why you think Obergefell is more unfounded in the Constitution than Lawrence. The majority opinion in Lawrence is based on substantive due process, which most conservatives don't tend to invoke in this day and age. It's essentially the logical successor to many Warren Court decisions, such as Griswold and Roe (yes, I know Roe was 1973, but it was a Warren Court decision in spirit). Justice O'Connor's concurrence on Equal Protection Clause grounds only argued that male-male sodomy statutes are facially constitutionally when they don't cover or apply to male-female relations. I'm not sure what you're referring to in terms of a newfound broad construing of privacy rights (at least outside of criminal procedure).

As I said above, I think Obergefell could've been written on a more solid foundation than was done, particularly with respect to the Equal Protection Clause. Justice Kennedy always seemed loath to establish a standard of review of sexual orientation (unless his viewpoint was that discrimination always failed rational basis, though he only mentioned rationality in Romer v. Evans). However, there are many in conservative legal thought who agree that same-sex marriage is protected by the Constitution. I've read a multitude of reasoning, ranging from the fundamental right to marry (established in Loving) to discrimination on account of sex. While I agree with both rulings, I think the precedential and textual basis for the right to same-sex marriage is much stronger.

If the Court somehow gets to a 7-2 or 8-1 conservative majority, that's a revolutionary change in the legal landscape, far beyond what this 6-3 majority can do or even probably conceive of. I think there is a point where the Court can lose legitimacy.

[BGBC]

I think pretty much every Supreme Court decision up to and including Dred Scott v. Sandford is in theoretical danger of being overturned by this court, however, I find any chance that is not 100% to overturn to be a decent chance, so I voted yes in the poll.

Dred Scott has already been overturned?

Dred Scott has never been overturned; it has been rendered moot by the 13th amendment.

Potayto potahto. The Fourteenth Amendment overturned Dred Scott.

[Fuzzy Bear]

I doubt Obergefell will ever be overturned.

[Fmr. Gov. NickG]

I doubt Gorsuch votes to overturn Obergefell, though his reasoning might be different than Kennedy’s. 
Banning gay marriage is straightforward gender discrimination in the exact same way that banning interracial marriage is race discrimination.

[MarkD]

I doubt Gorsuch votes to overturn Obergefell, though his reasoning might be different than Kennedy’s.  
Banning gay marriage is straightforward gender discrimination in the exact same way that banning interracial marriage is race discrimination.

I agree with you that Gorsuch is not likely to overturn Obergefell, and that he will vote to uphold it most likely on Equal Protection (egalitarian) grounds, not "right to marry" (libertarian) grounds. But I disagree with you about why Obergefell should be seen as "straightforward gender discrimination in the exact same way that banning interracial marriage is race discrimination," just like I disagreed with Gorsuch about two years ago about his reasoning in Bostock.

First of all, I almost always use Originalism as my guiding legal philosophy, not Gorsuch's alleged "Textualist" technique. I believe in discovering what statutes and constitutions were intended to mean, not just read the text and assume that I have no other choice than to take every word in those documents literally. Second, regarding what Gorsuch said in Bostock: I simply do not believe that only Textualism compelled him to come to that conclusion; his personal feelings about gay people factored in as well. He's not the kind of person who would say "Some of my best friends are gay" but be a hypocrite about it.

Next, to examine the problems with your theory that bans on same-sex marriage are exactly the same as bans on interracial marriage, let's start by thinking about four fictional people: Ricky, Lucy, Fred, and Ethel. As we think about them, suppose from the outset, that we don't know -- and that we don't CARE -- what sexual orientation any of the four of them are; they could all be heterosexual (a 0 on the old-fashioned Kinsey Scale), they could all be homosexual (a 6 on the Scale), or they could be any degree in between, such as bisexual or pansexual (1, 2, 3, 4, or 5). Now suppose the four of them decided they want to pair up and become two married couples. The traditional, common-law definition of marriage -- de facto identical to the laws adopted by tens of millions of voters in most of the states in the United States during the period prior to 2013 -- says that Ricky can get married to Lucy or Ethel, but not to Fred, and likewise, Lucy can get married to Ricky or Fred, but not to Ethel. Thus, all four of them are being treated equally -- the exact same way as one another -- because they all have TWO options of who they can get married to.

If those traditional/common-law bans on same-sex marriage get repealed -- one way or another: by voters (three states in the US and the entire country of Ireland), by legislatures (eight states in the US, and by some other countries such as Germany), or by courts -- then those four people have THREE options for who they can get married to instead of two. The change in the law results in an expansion of the options of whom one can get married to. The fact of expansion of options IS similar to the phenomenon of legalization of interracial marriage, but it still is not exactly the same.

When interracial marriage was illegal, whites were allowed to marry any other white person (OF THE OPPOSITE SEX)(and not certain close relatives), and all nonwhites were allowed to marry other nonwhites (DITTO)(and ditto). But that law gave white people a larger pool of potential marrying partners than nonwhite people. "There's a lot of fish in the sea," is an expression that was more meaningful for whites than for nonwhites. This is a point that I believe the SCOTUS should have made in the Loving opinion, but Chief Justice Earl Warren forgot to make that point. I do approve of the Court's conclusion in Loving, and most of what was said in Section 1 of the opinion, but the opinion could have been better by pointing out the larger-pool-of-marrying-partners point I just discussed, as well as point out the several decisions that the Court had been making from Brown v. Board of Education on through McLaughlin v. Florida -- striking down ALL de jure segregation of the white race from nonwhite races in public education, public golf courses, public beaches, parks, courthouses, and even cohabitation. After the Court forbade all of those instances of de jure segregation of the races, it was only logical to come to the conclusion that de jure segregation of the races in terms of marriage was the next -- LAST -- step of the process of forbidding de jure racial segregation.

That is not at all comparable to bans on same-sex marriage, because those bans integrate the sexes, the exact opposite of segregation. Bans on same sex marriage do not even segregate gay couples from straight couples; they require all marriages to be HETEROSEXUAL MARRIAGES and do not allow HOMOSEXUAL MARRIAGES AT ALL. Bans on same-sex marriage ban Lucy-Ethel marriages just as much as they ban Ricky-Fred marriages, which is to say that both sexes are treated the exact same way. The victims of this specific kind of discrimination are homosexuals compared to heterosexuals, not women compared to men!!!

Furthermore, can you imagine what would have happened in 1967 if some Ricky-Fred couple, and/or a Lucy-Ethel couple had asked the SCOTUS for the "equal right to get married to the person I love"? A lawsuit like that would have lost before The Supremes in 1967 by a margin of at least 6-3, maybe larger.

Furthermore, the Loving decision did not unleash a floodgate of millions of people eager to get married to a member of an "opposite" race (whites getting married to nonwhites and vice versa); most whites still get married to whites, most blacks still get married to blacks, most Asians still get married to Asians, and so on. Interracial marriages are still a small minority of all marriages that occur. But legalization of same-sex marriage does unleash a floodgate of tens of thousands of gay couples who wished to get married, and who now can.

I wish I could quote here some lengthy excerpts from Chapter 3 of a book called "Same-Sex Marriage and the Constitution," written by a law scholar by the name of Evan Gerstmann. In that chapter, 23 pages long, he thoroughly dissects all of the legal arguments in favor of the view that "bans on same-sex marriage can be viewed as forms of sex discrimination," and he completely, emphatically rejects those arguments. The most succinct quotes of his that I will include here are:
[A formal legal argument that same-sex marriage ban is gender discrimination] "is deeply, fundamentally dishonest. It is based upon the dubious assertion that the ... ban is best understood as a policy that discriminates against women. It would be difficult to say this to gay men with a straight face.
"It is obvious that the group that is being discriminated against is homosexuals, be they male and female. They are the ones who are being told that their love and commitment is not worthy of being solemnized by marriage; that their relationships are not worth the legal protection that marriage would bring; that their life partners cannot be stepparents to their children; and so forth. To say that this is about discrimination against women instead of gays and lesbians is blatantly misleading. It is the use of law to manipulate categories and to mislead rather than to cast light, as Loving did, upon the true nature of state-sponsored discrimination.
"The law serves its highest purpose best when it serves the side of truth and strips away the obfuscations of prejudice. This purpose was served when the [US Supreme] Court declared that Virginia's antimiscegenation laws were a pillar of 'White Supremacy' rather than a neutral system of laws that treated the races equally." ...
"Fundamental differences between interracial marriage and same-sex marriage mean that the same-sex marriage ban cannot honestly be viewed as gender discrimination."

[Sestak]

I doubt Gorsuch votes to overturn Obergefell, though his reasoning might be different than Kennedy’s. 
Banning gay marriage is straightforward gender discrimination in the exact same way that banning interracial marriage is race discrimination.

There are a couple points here that make a distinction, though; first of all is that the Fourteenth Amendment doesn't specifically list sex discrimination (or any other kind of discrimination) as banned the way Title VII did in the language ruled on in Bostock. There are some debates as to whether or not the Fourteenth Amendment bans sex discrimination - this is a major part of the debate over the ERA - and I believe Justice Thomas has stated at least once that he does not believe the Constitution prohibits sex discrimination at all (I may be misattributing a quote from another jurist here, though). Even without that, though, the specific text Gorsuch cites to make his argument in Bostock doesn't exist here except in previous Supreme Court precedent, and Gorsuch himself is generally more open to questions of original intent when dealing with the Constitution itself when compared to statutes where he almost always goes for the grammatical, plain-meaning approach.

Also, the specific precedents of the Supreme Court here present the other major difference, which I think Roberts and Alito (maybe others) relied on in their dissents in Obergefell - that though the court has recognized sex discrimination as being barred by the 14th, their precedents indicate that a lower 'intermediate' scrutiny standard should be used for it, whereby sex discrimination can be carried out by the state if it has a very strong government interest to do so - if this standard is accepted then you have to deal with questions in that direction.

This scrutiny standard hasn't always been applied uniformly; at times it's been used pretty closely to strict strutiny, and if a hypothetical case came before the court it's possible Gorsuch/Roberts/Kavanaugh/others choose to do something like that just to nip the issue in the bud (assuming it's even allowed to come before the court at all ofc), but from Gorsuch's perspective/legal approach specifically it takes more work to reach the conclusion of Obergefell than it does that of Bostock.

[politicallefty]

Next, to examine the problems with your theory that bans on same-sex marriage are exactly the same as bans on interracial marriage, let's start by thinking about four fictional people: Ricky, Lucy, Fred, and Ethel. As we think about them, suppose from the outset, that we don't know -- and that we don't CARE -- what sexual orientation any of the four of them are; they could all be heterosexual (a 0 on the old-fashioned Kinsey Scale), they could all be homosexual (a 6 on the Scale), or they could be any degree in between, such as bisexual or pansexual (1, 2, 3, 4, or 5). Now suppose the four of them decided they want to pair up and become two married couples. The traditional, common-law definition of marriage -- de facto identical to the laws adopted by tens of millions of voters in most of the states in the United States during the period prior to 2013 -- says that Ricky can get married to Lucy or Ethel, but not to Fred, and likewise, Lucy can get married to Ricky or Fred, but not to Ethel. Thus, all four of them are being treated equally -- the exact same way as one another -- because they all have TWO options of who they can get married to.

If those traditional/common-law bans on same-sex marriage get repealed -- one way or another: by voters (three states in the US and the entire country of Ireland), by legislatures (eight states in the US, and by some other countries such as Germany), or by courts -- then those four people have THREE options for who they can get married to instead of two. The change in the law results in an expansion of the options of whom one can get married to. The fact of expansion of options IS similar to the phenomenon of legalization of interracial marriage, but it still is not exactly the same.

When interracial marriage was illegal, whites were allowed to marry any other white person (OF THE OPPOSITE SEX)(and not certain close relatives), and all nonwhites were allowed to marry other nonwhites (DITTO)(and ditto). But that law gave white people a larger pool of potential marrying partners than nonwhite people. "There's a lot of fish in the sea," is an expression that was more meaningful for whites than for nonwhites. This is a point that I believe the SCOTUS should have made in the Loving opinion, but Chief Justice Earl Warren forgot to make that point. I do approve of the Court's conclusion in Loving, and most of what was said in Section 1 of the opinion, but the opinion could have been better by pointing out the larger-pool-of-marrying-partners point I just discussed, as well as point out the several decisions that the Court had been making from Brown v. Board of Education on through McLaughlin v. Florida -- striking down ALL de jure segregation of the white race from nonwhite races in public education, public golf courses, public beaches, parks, courthouses, and even cohabitation. After the Court forbade all of those instances of de jure segregation of the races, it was only logical to come to the conclusion that de jure segregation of the races in terms of marriage was the next -- LAST -- step of the process of forbidding de jure racial segregation.

That is not at all comparable to bans on same-sex marriage, because those bans integrate the sexes, the exact opposite of segregation. Bans on same sex marriage do not even segregate gay couples from straight couples; they require all marriages to be HETEROSEXUAL MARRIAGES and do not allow HOMOSEXUAL MARRIAGES AT ALL. Bans on same-sex marriage ban Lucy-Ethel marriages just as much as they ban Ricky-Fred marriages, which is to say that both sexes are treated the exact same way. The victims of this specific kind of discrimination are homosexuals compared to heterosexuals, not women compared to men!!!

Furthermore, can you imagine what would have happened in 1967 if some Ricky-Fred couple, and/or a Lucy-Ethel couple had asked the SCOTUS for the "equal right to get married to the person I love"? A lawsuit like that would have lost before The Supremes in 1967 by a margin of at least 6-3, maybe larger.

Furthermore, the Loving decision did not unleash of floodgate of millions of people eager to get married to a member of an "opposite" race (whites getting married to nonwhites and vice versa); most whites still get married to whites, most blacks still get married to blacks, most Asians still get married to Asians, and so on. Interracial marriages are still a small minority of all marriages that occur. But legalization of same-sex marriage does unleash a floodgate of tens of thousands of gay couples who wished to get married, and who now can.

I wish I could quote here some lengthy excerpts from Chapter 3 of a book called "Same-Sex Marriage and the Constitution," written by a law scholar by the name of Evan Gerstmann. In that chapter, 23 pages long, he thoroughly dissects all of the legal arguments in favor of the view that "bans on same-sex marriage can be viewed as forms of sex discrimination," and he completely, emphatically rejects those arguments. The most succinct quotes of his that I will include here are:
[A formal legal argument that same-sex marriage ban is gender discrimination] "is deeply, fundamentally dishonest. It is based upon the dubious assertion that the ... ban is best understood as a policy that discriminates against women. It would be difficult to say this to gay men with a straight face.
"It is obvious that the group that is being discriminated against is homosexuals, be they male and female. They are the ones who are being told that their love and commitment is not worthy of being solemnized by marriage; that their relationships are not worth the legal protection that marriage would bring; that their life partners cannot be stepparents to their children; and so forth. To say that this is about discrimination against women instead of gays and lesbians is blatantly misleading. It is the use of law to manipulate categories and to mislead rather than to cast light, as Loving did, upon the true nature of state-sponsored discrimination.
"The law serves its highest purpose best when it serves the side of truth and strips away the obfuscations of prejudice. This purpose was served when the [US Supreme] Court declared that Virginia's antimiscegenation laws were a pillar of 'White Supremacy' rather than a neutral system of laws that treated the races equally." ...
"Fundamental differences between interracial marriage and same-sex marriage mean that the same-sex marriage ban cannot honestly be viewed as gender discrimination."

I don't believe you can decouple discrimination on the basis of sexual orientation from sex discrimination. The two are intrinsically and inherently related. Marriage laws have never been statutorily constructed based on sexual orientation. Where they have been explicitly defined, it is based on sex (i.e. man and woman). In your first example, the individuals in question are being treated equally in some ways, but they are still being discriminated against in other respects. In your example, the fact that Lucy cannot marry Ethel is not somehow countenanced by the fact that Ricky cannot marry Fred and vice versa. Lucy cannot marry Ethel because she is a woman while Ricky would be permitted to do so because he is a man. That is without question the essence of sex discrimination.

The motivation is not relevant when the statute itself is designed to differentiate based on sex. As the Court noted in Craig v. Boren:

Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are "subject to scrutiny under the Equal Protection Clause."

I would also point out that the author you quote only mentions discrimination against women. Sex discrimination does not just work in that one sole direction. Mississippi University for Women v. Hogan was quite noteworthy in being a case where discrimination (in particular, exclusion) against men was found to be unconstitutional.

You also note what likely would have happened if the question of same-sex marriage had reached the Court in 1967. I don't think you're wrong in your supposition or the likely outcome. On the other hand, if you go back 48 years prior to that decision, do you really think the Court would've struck down laws barring interracial marriage in 1919? I certainly don't think so. There were only 16 states that banned interracial marriage when Loving came down in 1967. That was also at a time when just 20% of Americans approved of interracial marriage (17% among whites and 56% among non-whites). Prior to 1948, 30 of the then 48 states had anti-miscegenation laws. There's no way those laws wouldn't have been upheld prior to the Warren Court.

There are a couple points here that make a distinction, though; first of all is that the Fourteenth Amendment doesn't specifically list sex discrimination (or any other kind of discrimination) as banned the way Title VII did in the language ruled on in Bostock. There are some debates as to whether or not the Fourteenth Amendment bans sex discrimination - this is a major part of the debate over the ERA - and I believe Justice Thomas has stated at least once that he does not believe the Constitution prohibits sex discrimination at all (I may be misattributing a quote from another jurist here, though). Even without that, though, the specific text Gorsuch cites to make his argument in Bostock doesn't exist here except in previous Supreme Court precedent, and Gorsuch himself is generally more open to questions of original intent when dealing with the Constitution itself when compared to statutes where he almost always goes for the grammatical, plain-meaning approach.

I agree with you here. I think some on the left are too optimistic about Gorsuch when it comes to the Equal Protection Clause. His philosophy on constitutional interpretation is not the same as his statutory interpretation. He is without question very principled in his judicial philosophy and has no problem following it wherever it takes him. However, he is still an originalist with respect to the Constitution. I certainly wouldn't compare him to Thomas, who's generally in a different world from everybody else. We really haven't seen many Equal Protection Clause cases in recent years though.

[Aurelius]

I think pretty much every Supreme Court decision up to and including Dred Scott v. Sandford is in theoretical danger of being overturned by this court, however, I find any chance that is not 100% to overturn to be a decent chance, so I voted yes in the poll.

Dred Scott has already been overturned?

Dred Scott has never been overturned; it has been rendered moot by the 13th amendment.

Before that, it was also partially overturned in 1862 by Attorney General Bates' determination that blacks could be citizens and some were.

[MarkD]

I don't believe you can decouple discrimination on the basis of sexual orientation from sex discrimination. The two are intrinsically and inherently related.

I can and I always will decouple them.
It's true that there is a relationship between them. That's because the definition of sexual orientation includes an observation about the sex of the person AND the sex of who they are attracted to (male, female, both (or neither)). The same does not work in reverse: you can talk about any person's sex and be ignorant of - indifferent toward - that person's sexual orientation. So one definition is embedded within the other, not the other way around. But the definition of sexual orientation MUST include a variation on the word ATTRACTION. Without that word, there is no definition of a sexual orientation. The definition of sexual orientation MUST include an observation about TWO people -- the one who feels attraction and the one who is the object of attraction. The definition of sex is clearly identifiable by referring to only one person, and that definition is not dependent on who the person is attracted to.

You referred to two SCOTUS cases dealing with the subject of sex discrimination. I can easily refer to many more than those two. The two cases you mentioned -- Craig v. Boren and Mississippi University of Women v. Hogan -- both dealt with policies that were discriminatory toward men, treating men worse than women. I can name even more cases, such as Orr v. Orr (alimony law), Michael M. v. Superior Court of Sonoma County (statutory rape law), and Rostker v. Goldberg (the draft). Plus there are also cases addressing affirmative action programs for women, challenged by men, such as Johnson v. Transportation Agency, Santa Clara County. So sex discrimination can and sometimes does work both ways, often treating women worse than men, but sometimes the opposite occurs. But the same thing cannot be said about sexual orientation discrimination, right? Whenever somebody - anybody - has a policy of engaging in discrimination based on sexual orientation, who is always going to be treated worse: gay men, lesbians, and bisexuals (worse than straights)? Is it possible that some straight people will get treated worse than gay people? Like, in some sort of far-fetched hypothetical? If so, it is only going to be in a far-fetched hypothetical, not in reality.
I can, and I always will, see numerous differences between sex and sexual orientation. I won't equate them; I will only see a one-way ratchet of one definition being embedded within the other.

Marriage laws have never been statutorily constructed based on sexual orientation.

Of course, but that is because of the very long-term predominance of Heterosexual Supremacy that has gone back for literally centuries. It's been there from the start of the United States, it was there in the pre-Revolutionary War American colonies, and it had been there for centuries in English culture before the North American continent was settled, predominantly, by English settlers. Heterosexual Supremacy presumed these things: that being heterosexual is what all people were BORN TO BE, that homosexuality was a shameful, disgusting, perverted practice of a small minority of sinners, that those who do it damn well better keep their sinful, unnatural sex life in a closet -- keep it secret, don't brag about it -- and that such sinners should try to (as Archie Bunker once succinctly put it) "STOP THAT!" Furthermore, even the term "sexual orientation" is a relatively recent construct, in comparison to all those centuries of Heterosexual Supremacy. In the centuries before the term "sexual orientation" was invented, it would probably have been commonplace to refer to lesbians by the word lesbian, but to refer to gay men by words such as "sodomite" and "pederast." And the word "heterosexual" was preceded by -- what? -- "normal?"

In your first example, the individuals in question are being treated equally in some ways, but they are still being discriminated against in other respects. In your example, the fact that Lucy cannot marry Ethel is not somehow countenanced by the fact that Ricky cannot marry Fred and vice versa. Lucy cannot marry Ethel because she is a woman while Ricky would be permitted to do so because he is a man. That is without question the essence of sex discrimination.

No, the essence of sex discrimination is: "We'll allow Lucy-Ethel marriages, but we won't allow Ricky-Fred marriages."

I would also point out that the author you quote only mentions discrimination against women.

That's because I was only quoting from some sentences in the concluding pages of the chapter. I did not quote anything from the beginning pages or the middle pages of the chapter. Early in the chapter, Gerstmann discussed the most simple legal argument that sexual orientation discrimination is sex discrimination, calling it "the formal argument." That first, simplest kind of legal discussion can simply be phrased in such a way as to talk about the effect on four people like Ricky, Fred, Lucy, Ethel in the way that I did before. But in addition to "the formal argument" are "the feminist approach" and "sex stereotyping theories." In the middle of Chapter 3, a section subtitled "Heterosexism and Patriarchy":

The formal argument is not the only argument that the same-sex marriage ban is a form of gender discrimination. There are other, more subtle versions of the argument. One version is what Theodore Schroeder calls the feminist approach. Pioneered by Sylvia A. Law, this approach "begins with the premise that homosexual conduct is despised because it challenges our culture's traditional gender roles, roles with a hierarchical bias against women" Law calls this phenomenon "heterosexism." According to this theory, "sexual orientation discrimination furthers the ultimate goal of sex discrimination: maintenance of the traditional model [of gender roles]"
For radical feminists such as Catherine MacKinnon, these traditional roles, which are furthered by heterosexism, are at the core of the oppression of women. "[W]e have had enough of the glorification of this heterosexuality, this erotization of dominance and submission, while women-centered sexual expression is denied and stigmatized."
One of the best elucidations of this view is by William Eskridge, who describes homophobia as a "weapon of sexism." According to Eskridge, "Homophobia became one way modern urban culture responded to women's political and social equality." Homosexuality is despised because it is a threat to a gender-dichotomized world in which men are active and powerful while women are weak and passive. In the homosexual world, men can be  passive and penetrated while women can be dominant and take on the traditionally male sexual role. By demonizing gays and lesbians, heterosexual men keep women in their place. "Numerous studies by social psychologists have shown support for traditional sex roles correlates strongly with disapproval of homosexuality."
But this demonization of homosexuality does not only oppress gays and lesbians. "This is the argument that in contemporary American society, discrimination against lesbians and gay men reinforces the hierarchy of males over females and thus is wrong because it oppresses women."
This argument has also been applied to the same-sex marriage debate. The requirement that marriage be duel gendered railroads men and women into roles of husbands and wives and into a heterosexual institution that is historically and perhaps inherently oppressive toward women. Cass Sunstein argues: "It is possible to think that the prohibition on same-sex marriages, as part of a social and legal insistence on 'two kinds' [of gender], is as deeply connected with male supremacy as the prohibitions of racial intermarriage is connected with White Supremacy. Perhaps same-sex marriages are banned because of what they do -- because oh how they unsettle -- gender categories. Perhaps same-sex marriages are banned because they complicate traditional gender thinking, showing that the division of human beings into two simple kinds is part of sex-role stereotyping, however true it is that men and women are 'different.' " (Citations omitted, but colorized emphasis added by me.)

This is why, in the concluding pages of the chapter, Gerstmann refers to "discrimination against women."

Lastly,

You also note what likely would have happened if the question of same-sex marriage had reached the Court in 1967. I don't think you're wrong in your supposition or the likely outcome. On the other hand, if you go back 48 years prior to that decision, do you really think the Court would've struck down laws barring interracial marriage in 1919? I certainly don't think so. There were only 16 states that banned interracial marriage when Loving came down in 1967. That was also at a time when just 20% of Americans approved of interracial marriage (17% among whites and 56% among non-whites). Prior to 1948, 30 of the then 48 states had anti-miscegenation laws. There's no way those laws wouldn't have been upheld prior to the Warren Court.

I completely agree. Like I said above, Loving was the last step in the overall trend of striking down de jure segregation of the races. There was no way that the SCOTUS would have dealt with interracial marriage BEFORE it dealt with segregation of schools, golf courses, parks, beaches, courthouses, or even cohabitation. All those other decisions had to come first, because they created a linear path of growth that would eventually lead to and point to the issue of interracial marriage. The same kind of linear path of growth has not happened in terms of how the SCOTUS has treated gay people. The racial cases were unanimous (because everyone on the SCOTUS knows that racial discrimination is the most unacceptable kind of discrimination), but the cases about gay men, lesbians, and bisexuals have not been unanimous (because of ideological divisions). Romer v. Evans lead to Lawrence v. Texas, which lead to U.S. v. Windsor, and finally Obergefell v. Hodges. There is virtually no similarity whatsoever between the two paths of growth, and Justice Anthony Kennedy himself would obviously loathe trying to make any comparison between race and sexual orientation.

[I’m not Stu]

Is it possible Kavanaugh won’t vote to overturn them? He didn’t join Thomas and Alito in the Kim Davis case.