Same-sex marriage is in danger
Are the rights of same-sex partners to sexual intimacy and marriage on the chopping block now that the Supreme Court has overruled Roe v. Wade? Justice Samuel Alito, who wrote for the majority of the Supreme Court in the ruling that eliminated the right to an abortion, says not to worry.
But his explanation of why those rights are safe doesn’t make a lot of sense.
Alito says sexual intimacy and marriage equality are different from abortion because abortion involves “a potential life.”
The problem is that “potential life” had nothing to do with the court’s reasons for overruling Roe v. Wade. And the rationale the court did use very much threatens marriage and sexual intimacy.
The court said that Roe was “egregiously wrong” not because it failed to take “potential life” into account but because the constitution does not mention abortion or even a right to privacy, and no right to abortion has long been recognized in the United States.
We only use the Constitution to enforce a right not specifically set out in the document, the court said, if it is a right society has long recognized. Abortion, the court said, didn’t qualify, so no constitutional protection.
Much the same, however, can be said of marriage for same sex couples and for most if not all sexual intimacy.
In much of the United States, any form of sex that did not hold out the possibility of creating children was illegal until the mid-20th century — the enduring heritage of our colonial forbearers. Marriage for same-sex couples was pretty much unheard of in the United States until the mid-20th Century.
And guess who made that point about marriage for same-sex couples not being protected by the Constitution because it was not historically available to them?
Justices Alito, Clarence Thomas and John Roberts in dissenting opinions to the 2015 case that guaranteed equal marriage rights for same sex couples. Here is Alito, joined by Thomas:
“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to oppositesex couples violated the State Constitution ... Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed samesex couples to marry until the Netherlands did so in 2000.
“What (those arguing in favor of a constitutional right to same sex marriage) seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges.”
Marriage and sexual intimacy are constitutionally different from abortion as the court sees it — in a way that should protect those rights. But while the court has used history to decide what individual rights U.S. society has historically recognized, it has not used history to decide who got to exercise the rights.
Even though unwed fathers had no legal relationship with their children until the 20th century, they had the same constitutional parental rights as legally married parents. The historical right to marry itself did not apply to interracial couples until the mid-20th century. Still, individual members of those interracial couples had the constitutional right to marry that others do.
Those cases make sense. The 14th Amendment, passed after the Civil War, protects “liberty” and “privileges and immunities” (19th century language for “basic human” rights) from state interference. Those general words are the basis for protecting historically respected rights not specified in the Constitution.
And right alongside those protections is another, which guarantees all persons the “equal protection of the law.”
History tells us what liberty is; equal protection tells us all of us have it.
But guess again who has rejected the argument that “equal protection” should keep states from excluding same-sex couples from marriage.
That’s an easy one: Alito, Thomas and Roberts. Here’s how Chief Justice Roberts, joined by Thomas, put it:
“In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’ ”
In overruling Roe, guess who brushed aside the powerful argument that laws against abortion deny women “equal protection”? Guess who ruled — I am not making this up — that laws against abortion discriminate not against women but against people who become pregnant?
That would be Alito and Thomas, joined by Justices Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett.
All of this is to say that any recent assurances the court has given us that sexual intimacy and marriage for samesex couples are not rights that might be taken away has nothing to do with its reason for taking away the right to abortion. It is, as lawyers like to say, a distinction that makes no legal difference.
Furthermore, the solid constitutional reason, equal protection of the law, for continuing to protect the rights to sexual intimacy and marriage for same-sex couples has already been rejected by the leaders of the conservative block on the court, even including its chief.
The court will likely leave the rights to marry and to sexual intimacy alone if it thinks the damage in overruling them is not worth what it would do to its already crumbling institutional legitimacy. If the blow back from overruling Roe clips the justices’ wings enough, and they think married gays are a minor problem, these cases are safe.
But, boy, that’s a slender reed for protecting the right to love and be together.