If Roe falls, is same-sex marriage next?
WASHINGTON >> When the Supreme Court heard arguments in December over the fate of the constitutional right to abortion, it was already clear that other rights, notably including same-sex marriage, could be at risk if the court overruled Roe v. Wade.
The logic of that legal earthquake, Justice Sonia Sotomayor predicted, would produce a jurisprudential tsunami that could sweep away other precedents, too.
The justices' questions on the broader consequences of a decision eliminating the right to abortion were probing but abstract and conditional. The disclosure May 2 of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, has made those questions urgent and concrete.
The opinion, by Justice Samuel Alito, provided conflicting signals. On the one hand, he asserted, that other rights would remain secure.
“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,” he wrote.
On the other hand, the logic of the opinion left plenty of room for debate.
It said a right to abortion cannot be found in the Constitution or inferred from its provisions. The same could be said, using the draft opinion's general reasoning, for contraception, gay intimacy and same-sex marriage, rights established by three Supreme Court decisions that were discussed at some length in the argument in December.
The reasoning in the draft has alarmed supporters of gay rights, who say they fear that the final opinion, if it resembles the draft, could imperil hard-won victories.
Alito, for his part, has made no secret of his hostility to Obergefell v. Hodges, the 2015 decision on samesex marriage. In 2020, when the court turned down an appeal from a county clerk who had been sued for refusing to issue marriage licenses to same-sex couples, he joined a statement written by Justice Clarence Thomas that called the decision at odds with the Constitution.
That is the same argument the draft opinion makes about the right to abortion. Alito's efforts to distinguish the two questions, then, may strike some as halfhearted.
The primary distinction that Alito drew was that there was an important moral value at issue in Roe and in Planned Parenthood v. Casey, the 1992 decision that reaffirmed its central holding.