Let’s just say this situation is concerning.
On June 24, the Supreme Court sent shockwaves throughout the country as they announced their official decision to overturn both Roe v. Wade and Planned Parenthood v. Casey in a decisive five-to-four majority opinion in the critical abortion rights case, Dobbs v. Jackson Women’s Health Organization. In one fell swoop, the Supreme Court not only initiated a drastic rightward shift within the nation’s reproductive rights landscape, but also put other civil liberties at risk – such as the landmark 2015 case that ensured marriage equality for same-sex couples, Obergefell v. Hodges. Here’s why people are also worried about marriage equality now that Roe v. Wade has been struck down.
Many are already worried marriage equality could be the Supreme Court’s next target. In his draft opinion, Justice Samuel Alito argued that other landmark cases cited in the Roe and Casey rulings are not at risk because they don’t involve “the critical moral question of abortion.” However, not every member of the majority was on the same page: in his concurring opinion, Justice Clarence Thomas noted how subsequent rulings based on Roe should be reconsidered, as those rulings were “demonstrably erroneous decisions.” And “because any substantive due process decision is ‘demonstrably erroneous,’” Thomas continued, “we have a duty to ‘correct the error’ established in those precedents.” When considering cases in the future, Thomas added, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Efforts to strike down Roe, restrict contraception access, and once again criminalize same-sex marriage are all part of a “coordinated effort on the part of the people trying to restrict reproductive health, trying to restrict LGBTQ+ rights,” says Cathren Cohen, a scholar of law and policy with the UCLA Law Center on Reproductive Health, Law, and Policy, in a previous interview with Elite Daily. “It’s incredibly important that people realize that these aren’t siloed issues — the attacks on reproductive rights, and the attacks on LGBTQ+ people, and the attacks on trans people in particular — they’re all connected, and the people who are pushing those policies recognize that they’re connected.”
For decades, Roe v. Wade protected the right to access abortion care on the grounds that Americans have a fundamental right to privacy. While the right to privacy doesn’t appear in the Constitution, it’s long been interpreted as covered under the 14th Amendment’s restrictions on how the government can limit personal liberty. Stetson University law professor Ciara Torres-Spelliscy told Elite Daily in June 2022 that this interpretation has been codified in many different Supreme Court rulings, such as the 1965 case Griswold v. Connecticut, which gave married couples the right to use contraceptives without government interference, and the 2003 case Lawrence v. Texas, which decriminalized intimate and consensual same-sex relationships.
“Roe v. Wade and Planned Parenthood v. Casey both rely on the due process clause of the 14th Amendment,” Torres-Spelliscy says. “The word ‘abortion’ and the word ‘privacy’ and the word ‘marriage’ all do not appear in the Constitution. But all of these words have been inferred by the Supreme Court using the word ‘liberty’ in the due process clause.”
What’s in question is whether certain personal rights are protected from government interference, even though they’re not specifically mentioned in the Constitution. This legal interpretation is called substantive due process, and “Justice Alito and other conservative justices do not like this way of interpreting the Constitution,” Torres-Spelliscy says. “Thus, if abortion cannot be protected under this reading of the 14th Amendment, so the argument goes, neither can gay marriage.”
The draft opinion, Cohen says, effectively takes the stance that the only rights covered under the 14th Amendment are the ones that were intended, or understood to be intended, at the time the amendment was ratified. “[The draft] says that in order for something to be protected under the substantive due process clause, it has to be ‘rooted in our nation’s history and tradition’ and be an ‘essential component’ of ordered liberty,” a term for liberty circumscribed by the need for an orderly society, Cohen says. “And the way that Justice Alito looks to see whether it has that root in the nation’s history is to look at what was understood at the time that the 14th Amendment went into effect, which was in the 1860s after the Civil War.” Needless to say, same-sex marriage wasn’t exactly on the books at the time: Obergefell v. Hodges, which struck down bans on same-sex marriage nationally, was only decided 2015.
So what does all this mean for the future of same-sex marriage in the United States? For starters, now that Roe has fallen, same-sex marriage will not suddenly become illegal — the only immediate impact is on abortion rights. However, the reasoning for striking down Roe could outline a potential legal argument for overturning the marriage equality rights affirmed in Obergefell. To do that, Cohen says, a state would have to pass a new piece of legislation banning same-sex marriage — or revive an old one that might still be in its constitution from the pre-Obergefell era — “and it would have to work its way back through the courts.”
In theory, Cohen says, any attempt at passing (or reviving) a ban on same-sex marriage would have to make it all the way back up to the Supreme Court, which would then have to take the case on and rule in the hypothetical ban’s favor, a process which could potentially take years. “It’s possible that you could see some rogue, lower-level courts who are just interpreting this Roe decision to mean that they could try to uphold a same-sex marriage ban, but I think that would probably be unlikely.” Cohen also notes that while Obergefell uses many of the same privacy arguments as Roe, it doesn’t use only those arguments, which could make its precedent more secure.
But while it would be an uphill battle to overturn marriage equality, that doesn’t mean some states won’t try. “Look for a state like Alabama to re-ban gay marriage, which would provide a test case for the justices,” Torres-Spelliscy says.
If the Supreme Court does hear a same-sex marriage case in the future — and if, in the worst case scenario, the court decides to strike down Obergefell — the consequences are still unclear. Simply overturning Obergefell would have a similar effect to overturning Roe, in that the question would then go back to the states as to whether or not same-sex marriages would be recognized. “Some states actually still have their same-sex marriage or even sodomy bans on the books; they just aren’t in effect right now because the Supreme Court has ruled such laws violate the federal Constitution,” Cohen points out. Those states — like Mississippi and Florida — would be likely to prohibit same-sex marriage again, creating a messy national patchwork of where a couple’s marriage was recognized and where it wasn’t.
“The more likely scenario is that some states would outlaw [same-sex marriage] and others would protect the right, and there would be endless fights about who was really married when folks move across state lines,” Torres-Spelliscy says.
Because the Supreme Court overturned Roe in its Dobbs v. Jackson ruling, the ruling could have a ripple effect, potentially impacting not only abortion, but also birth control and contraception access, same-sex marriage, and interracial marriage. That’s not to say, however, that a same-sex marriage ban is impending or inevitable. According to Cohen, Congressional legislators could still protect same-sex marriage and other civil liberties by passing legislation — “there would need to be just more political will and efforts spent behind getting those things through Congress in order for them to protect those rights,” she says.
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