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Same-Sex Marriage Rights Get Lawmaker Focus in Post-Roe Debate

July 14, 2022, 11:57 PM

Lawmakers clashed over the extent to which same-sex marriage and other hard-won rights are at stake following the US Supreme Court’s decision overturning the Roe v. Wade precedent legalizing abortion.

Members of the House Judiciary Committee on Thursday weighed in on the concepts of due process and privacy, and whether the high court’s take last month in Dobbs v. Jackson Women’s Health Organization would endanger other individual freedoms.

“While Justice Alito specifically claimed that Dobbs was limited to abortion and had no effect on other fundamental rights, I find that assurance to be cold comfort,” Committee Chairman Jerrold Nadler (D-N.Y.) said at a hearing examining the potential broader impacts of that decision.

“The Court’s reasoning in Dobbs, if taken to its logical extent, could serve as a roadmap for this conservative majority to eviscerate in future cases other fundamental rights premised on the right to privacy and the doctrine of substantive due process more generally,” Nadler said.

Justice Samuel Alito stressed in his majority opinion that the Dobbs ruling doesn’t threaten constitutional protections like same-sex marriage and contraception. But Justice Clarence Thomas, in his concurring opinion, called for the court to reconsider all precedents based on substantive due process.

Some Republicans said Democrats are wrong to worry rights protected by substantive due process are at risk. It is a misconception that “Dobbs overturns some sort of sacred legal doctrine enshrined in the history of constitutional law,” Rep. Steve Chabot (R-Ohio) said at the hearing.

“The truth is, the legal doctrine in question—substantive due process—has a much more checkered and murky past than abortion advocates would have you believe,” he said, pointing to the use of substantive due process to uphold the rights of slave owners.

Lawmakers and legal experts at the hearing debated the extent to which same-sex or interracial marriage involved substantive due process.

Obergefell v. Hodges and Loving v. Virginia, which legalized same-sex marriage and interracial marriage respectively, invoked both substantive due process and the equal protection clause, Rep. Steve Cohen (D-Tenn.) said.

But Catherine Glenn Foster, president and CEO of Americans United for Life, an anti-abortion advocacy group, suggested the right to interracial marriage was less tied to due process than some think.

“In Loving, that decision was based on equal protection, with about two paragraphs on substantive due process,” Glenn Foster said. “Obergefell was based on both equal protection and substantive due process, woven together.”

Melissa Murray, an NYU law professor, disagreed, saying the Dobbs reasoning puts both precedents in peril.

“To my mind, there is no way to distinguish the two,” Murray responded, referring to Obergefell and Loving. “Both of them acknowledge that there is the right to marry, or not, and implicit in that right is the right to marry a person of one’s choice.”

The stakes are high for LGBTQ people.

“A young woman told me that if not for marriage equality, she would have killed herself,” Jim Obergefell, the named plaintiff in Obergefell, said in his testimony. “Let that sink in. How many other lives were saved that day? How many will be lost; what damage will be done to our families if our right to marriage is taken away?”

To contact the reporter on this story: Maia Spoto at mspoto@bloombergindustry.com

To contact the editor responsible for this story: Alexis Kramer at akramer@bloomberglaw.com