As the ground shakes in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health to overturn the constitutional right to abortion once spied in Roe v. Wade, the next battle — whether there is a constitutional right to gay marriage — is already under way.

This is marked by Senator Cruz, who on his YouTube channel declared this week that “Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history.” He went on to explain: “Marriage was always an issue that was left to the states.”

Mr. Cruz, a graduate of Harvard Law School, thus moved into the van of conservative constitutional thinking. Even as the court in Lawrence v. Texas and Obergefell v. Hodges affirmed the presence of a constitutional shield protecting the rights to, respectively, same-sex intimacy and gay marriage, the dissents that accompanied those decisions prefigured the vein of argument that would lead to Dobbs. 

Now, Justice Clarence Thomas’s concurrence in Dobbs — where he opines that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — could yet signal the next era of jurisprudence.

His fellow justices worked to fence in Justice Thomas’s far-reaching call to undo the judicial doctrine of substantive due process, claiming that Roe is not the first domino to fall but an isolated undoing. In the majority opinion, Justice Samuel Alito insists: “None of the other decisions” — meaning Griswold, Lawrence, and Obergefell — “involved the critical moral question posed by abortion. They are therefore inapposite.”

Justice Brett Kavanaugh took pains to emphasize this point,  writing: “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” The italics are his. Critics, including Senators Manchin and Collins, have accused the justice of misleading the upper chamber as to his intentions regarding Roe.   

Mr. Cruz is not the only lawmaker with an eye on the aftershocks of Dobbs. Representative Alexandria Ocasio-Cortez warned of the possibility that Obergefell and other precedents would soon be on the chopping block. She did so in a letter calling for Congress to strip the court of certain areas of its jurisdiction in light of the “unprecedented” and “devastating” decision.  

In particular, AOC would retract “the Supreme Court’s appellate jurisdiction in the areas of abortion, marriage equality, non-procreative intimacy, and contraception, which have been called into question in Justice Thomas’ concurring opinion in Dobbs.” That congressional capacity is ensconced in Article III, Section 2 of the Constitution.

Whether Ms. Ocasio-Cortez has thought through her plan to curb the jurisdiction of the Nine wasn’t clear from what she said. Removing the jurisdiction of the court might make sense to advocates of abortion rights at the moment. What happens, though, when a pro-abortion litigant wants to take a case to the Supreme Court? He might rue any such restrictions as Ms. Ocasio-Cortez has proposed.

All the more so because, in addition to constitutional maneuvering, lawmaking is afoot on the Hill. House Democrats this week will hold votes on bills to enshrine both gay marriage and contraception in federal law, prophylactically maneuevering against a future decision from the Nine. Ms. Collins has indicated that she will support the marriage legislation in the Senate.    

While the leaked opinion in Dobbs struck many like a thunderbolt, the seeds of the argument to topple Obergefell were planted at the moment of its 2015 decision, articulated along lines that track closely the logic of Dobbs. That all happened in a dissent in which the Great Scalia wrote, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

Previewing the line of argument that would win the day seven years later, Scalia wrote, “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views.”

This vision of the states as a repository of rights that had been arrogated to substantive due process goes back even earlier than Obergefell, to Scalia’s dissent in Lawrence in 2003. There, the justice sounded the same note, writing, “I would no more require a State to criminalize homosexual acts — or, for that matter, display any moral disapprobation of them — than I would forbid it to do so.” 

That language rhymes with Justice Alito’s declaration in Dobbs that the court had decided to “return the power” to decide on abortion, on a state by state basis, “to the people and their elected representatives.” It is time, Justice Alito writes, “to face up to the real issue without further delay.”