If Roe Falls, Is Same-Sex Marriage Next?

It is hard to sufficiently state the dangers posed to LGBT rights by the draft opinion leaked from the Supreme Court that would overturn Roe v. Wade and in the process put a number of other cases at risk of reversal, particularly those surrounding LGBT rights and same sex marriage.  All of these depend on a constitutional right to privacy and freedom to make intimate decisions - all of which the draft opinion says do not exist under the U.S. Constitution.  While the draft opinion dissembles, gays and gay rights are hated by the Christofascists - which includes at least four of the current justices - as much or more than abortion.  Moreover, Jutice Alito - the author of the draft opinion - is on record as opposing same sex marriage and, I suspect if given the freedom he would reinstitute sodomy laws.  A piece in the New York Times looks at the frightening prospects the overturning of Roe holds for LGBT Americans.  Here are highlights:

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 opinion, by Justice Samuel A. Alito Jr., provided conflicting signals about its sweep and consequences. On the one hand, he asserted, in a sort of disclaimer that struck a defensive tone, that other rights would remain secure.

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.

At the argument, Justice Sotomayor sparred with Scott Stewart, Mississippi’s solicitor general, who was defending a state law banning most abortions after 15 weeks of pregnancy.

“I’m not trying to argue that we should overturn those cases,” she said of the other decisions. “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.”

Mr. Stewart tried to distinguish the three other rulings from Roe, saying they were clearer, had given rise to more public reliance and did not “involve the purposeful termination of a human life.”

Justice Sotomayor was unimpressed, saying all of the cases were grounded in the same kind of constitutional reasoning. “I’m not sure how your answer makes any sense,” she said.

But 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.

“None of us are safe from the extreme anti-women and anti-L.G.B.T.Q. ideology that now dominates this court,” Sarah Kate Ellis, the president of GLAAD, said in a statement.

Justice Alito, for his part, has made no secret of his hostility to Obergefell v. Hodges, the 2015 decision on same-sex 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. Justice Alito’s efforts to distinguish the two questions, then, may strike some as halfhearted.

The primary distinction Justice 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.

Justice Alito surveyed the precedents cited by Roe and Casey to justify their protection of abortion. They included ones on interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the education of one’s children and the right not to be sterilized without consent.

He also cited two “post-Casey decisions,” Obergefell and Lawrence v. Texas in 2003, which struck down a Texas law that made gay sex a crime.

Justice Alito, a careful draftsman, then seemed to distinguish between the two sets of decisions.

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he wrote. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

Tellingly, perhaps, that passage in the draft opinion was silent on whether its conclusion undermined the two post-Casey decisions on gay rights.

In general, Justice Alito wrote that he was wary of “attempts to justify abortion through appeals to a broader right to autonomy,” saying that “could license fundamental rights to illicit drug use, prostitution and the like.”

Can Alito be trusted?  I think not.  No one lies more than the self-anointed "godly folk."