If Roe v. Wade falls, are LGBTQ rights next?
AUSTIN, Texas — A leaked draft of the U.S. Supreme Court’s forthcoming opinion on abortion says that the rights to gay marriage and same-sex partner intimacy may be safe — but only for now.
If the leaked draft proves to be the final version, or close to it, the opinion would not only uphold a Mississippi ban on abortions at 15 weeks but also overturn the 1973 landmark Texas case Roe v. Wade and trigger even stricter bans in other states.
Constitutional law experts believe the draft opinion also sheds light on the future of LGBTQ rights across the country.
In the document, Justice Samuel Alito makes clear that the decision would apply only to abortion and that it should not be read to have any effect on previous rulings upholding gay unions and striking down bans on gay sex.
This should provide some comfort to LGBTQ rights advocates, experts said. But they added that couched in this assurance is a warning.
Overturning Roe would show no precedent is sacred. And the draft document circulating, while narrowly tailored to the abortion issue, also gives activists a playbook for how in future to target other rights rooted in the same principles, such as privacy, autonomy and family choice.
For those living in states like Texas — whose lawmakers never axed constitutionally unenforceable laws banning sodomy or defining marriage as strictly a heterosexual affair — Alito’s deference to the will of local legislatures sets the state Capitol and not the courtroom as the final battleground for the question of LGBTQ rights.
With their holy grail attained — striking down
the right to abortion — will conservatives go after gay marriage next?
“Those rights are secure for now,” Dale Carpenter, constitutional law chair at Southern Methodist University’s Dedman School of Law, said. “But be on guard.”
What does the draft say about LGBTQ rights?
The draft opinion addresses LGBTQ rights in two different places, Carpenter said.
In a section discussing precedent, Alito said that abortion is distinguished from other divisive cultural issues because it involves “potential life.”
“None of the other decisions cited by Roe and (Planned Parenthood v.) Casey involved the critical moral question posed by abortion. They are therefore inapposite,” Alito wrote.
The draft repeats this distinction later and goes a step further to explicitly allay the fears of those who would read this opinion as a rejection
of same-sex marriage and other LGBTQ rights.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do notconcernabortion,”Alito wrote.
Carpenter said this means LGBTQ cases already decided by the court won’t be “immediately and directly” imperiled.
“He’s offering reassurance about the security of other rights — for the time being,” Carpenter said. But he added that the entire opinion, at least in the draft as written, is “hostile” toward rights that are not specifically named in the U.S. Constitution — including marriage, sexual intimacy and contraception.
Anthony Michael Kreis, a constitutional law professor at Georgia State University, described the array of American
rights as a tapestry.
“Once you pull one string, the others become much more loose. The binding is really threatened,” Kreis said. “All of our rights, all of our civil liberties, they rise and fall together. They’re intertwined.”
While the fabric of LGBTQ rights would not unravel immediately, Kreis said it would be much easier for anti-gay advocates to fray it around the edges as Roe falls. If the right to privacy is lost in the abortion setting, for example, states could argue they have an interest in imposing their will on other private medical decisions, like treatments for transgender patients, especially children and adolescents.
“We’re in for a very ugly few months, few years,” Kreis said.
President Joe Biden issued a similar warning Wednesday.
“This is about a lot more than abortion,” Biden said. “What are the next things that are going to be attacked?”
Cases such as Lawrence v. Texas, which struck down sodomy laws criminalizing same-sex intimacy, and Obergefell v. Hodges, which legalized gay marriage, are based at least in part on that same right to privacy.
Obergefell is different from Roe in that hundreds of thousands of same-sex couples have relied on it to wed and created legal bonds, like shared property, inheritance rights and “settled expectations about the future,” said Teresa Collett, a professor at the University of St. Thomas School of Law in Minnesota and director of its Prolife Center.
Courts are usually loath to undo that kind of precedent. It stands in contrast to abortion, which is usually “a response to unplanned circumstances,” Collett said.
Obergefell, moreover, relies on the Constitution’s Equal Protection Clause as well as the right to privacy.
Still, the language and tone Alito uses overall could encourage more challenges, said Jason Pierceson, professor of political science at the University of Illinois Springfield. “If the right to privacy is deconstructed or is hollowed out, or is minimized, then those cases in particular have less standing,” Pierceson said.
A challenge to same-sex marriage could come before the high court on religious liberty grounds, for example, such as someone arguing their religious faith prevents them from recognizing same-sex marriage. Cases along those lines have been mostly about exceptions to anti-discrimination laws so far, Pierceson said, “but one could see potentially a broadening of the argument to the fact that maybe same-sex marriage laws are unconstitutional in the first place.”
LGBTQ rights have made progress over the past decade, and public opinion has become much more supportive. But especially over the past year there has been a wave of bills in state legislatures aimed at transgender youth sports and healthcare, as well as talking about LGBTQ issues in certain classrooms. Backers generally argue they’re needed to protect kids and the rights of parents.
Against that backdrop, the draft opinion, if finalized, could “send up a flare” to conservative activists, said Sharon McGowan, legal director at Lambda Legal.
“Overturning Roe will be most dangerous because of the signal it will send lower courts to disregard all the other precedents that exist,” she said.
“It’s not going to end with abortion,” said Mini Timmaraju, the president of NARAL Pro-Choice America. “So everyone needs to be very vigilant.”