Abortion draft spurs speculation about future of same-sex marriage
WASHINGTON — A leaked draft opinion suggesting that the Supreme Court will eradicate the national right to abortion has set off a wave of conjecture that the justices could also roll back the right to same-sex marriage, erasing decades of activism by the LGBTQ community.
The speculation was prompted by Justice Samuel Alito’s narrow interpretation of what constitutes a fundamental right and his repeated references to the idea that any right not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” to be recognized.
Legal experts are divided on whether the right to same-sex marriage is actually in danger.
Some say the draft opinion in the abortion case provides a road map for the court to hold that same-sex marriage is not a fundamental right, while others argue that there is no public appetite for putting that issue before the court. They also point out that Alito, who was appointed by President George W. Bush, explicitly stated in the draft opinion that his reasoning was not meant to apply to any rights besides abortion.
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Some legal experts doubt the court will stay true to that position.
Jordan Woods, faculty director of the LGBTQ Law & Policy Program at the University of Arkansas, said Alito’s logic in the draft opinion largely mirrors his dissent in Obergefell v. Hodges, which established the right to same-sex marriage in 2015. In both documents, Woods said, Alito mentioned the lack of an explicit reference to the right in the Constitution, the idea that voters should decide, the lack of historical recognition of the right and the problems purportedly caused by the court recognizing the right.
As a result, Woods said, advocates who oppose same-sex marriage could use Alito’s logic as guidance for new lawsuits attempting to overturn Obergefell. Woods said he was also unnerved by Alito’s comment that appeals to people’s right to autonomy could lead to a slippery slope in which prostitution and illicit drug use are protected. The dissenting justices in the 2003 opinion that struck down a ban on consensual sex between adults of the same sex relied on a similar argument, he said.
“Ultimately, what the court will do, nobody knows,” Woods said. But Alito’s “draft absolutely provides a blueprint for the court essentially eroding or even overturning important constitutional precedents that are in this area of privacy that clearly this draft opinion is hostile towards.”
Other legal experts see the destruction of the right to same-sex marriage as unlikely.
Katie Eyer, a professor at Rutgers University with expertise in anti-discrimination law, said Alito’s draft opinion relies on a narrow interpretation of what constitutes a fundamental right — the same question at issue in Obergefell. The draft opinion also suggested a willingness to reconsider established precedent, Eyer added.
But Eyer said public opinion in the United States is so strongly in favor of same-sex marriage — 61% percent, as of 2019 — that she doubts the court has an appetite for revisiting the issue.