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Same-Sex Marriage, Contraception at Risk After Roe Ruling (3)

June 24, 2022, 7:54 PM

The US Supreme Court decision ending the right to abortion established by Roe v. Wade in 1973 has put other hard-won rights at risk, including the rights to same-sex marriage and contraception.

The level of risk depends on which opinion you read. The majority ruling written by Justice Samuel Alito said, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But Justice Clarence Thomas, in a concurring opinion, made it clear that “future cases” could curtail other rights not clearly addressed by the Constitution’s 18th Century framers.

“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas said, referring to the landmark Supreme Court rulings that legalized contraception, same-sex intercourse and same-sex marriage. All of those decisions established rights that were not explicitly enumerated in the Bill of Rights.

The dissenting justices said Alito’s guarantee cannot be taken at face value, and that Thomas’s opinion is a clear warning. After all, they said, the right to terminate a pregnancy arose from the right to privacy established by the contraception ruling, which led more recently to expanded LGBTQ rights.

‘Same Constitutional Fabric’

“No one should be confident that this majority is done with its work,” liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in their dissent. The other rights now at risk “are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.”

Jenny Pizer, the law and policy director for Lambda Legal, an LGBTQ rights organization, agreed.

“It’s a little hard to take Alito at his word that what was issued today doesn’t foretell danger for those other protected rights, because the analysis he used undercuts most of our modern constitutional jurisprudence,” Pizer said. “It’s a shockingly retrograde and mistaken way to read the Constitution.”

Thomas’s opinion is a “rallying cry” for conservatives to start challenging same-sex marriages “almost immediately,” said Roberta Kaplan, the lawyer who argued the landmark Supreme Court case that overturned part of the Defense of Marriage Act, resulting in the federal government recognizing such unions.

Kaplan said the challenges would likely start with local officials refusing to grant marriage certificates to same-sex couples based on religious objections. Kentucky clerk Kim Davis briefly became a conservative darling in 2015 for trying to do exactly that.

“In other words, we are going to see dozens of future Kim Davises, all of whom will refuse to recognize the legitimacy of marriage equality in whatever way they can,” Kaplan said in an interview. “And one day, sooner or later, one of those cases will end up at the Supreme Court.”

‘Jenga Tower’

The dissenting justices signaled similar concerns about extracting the right to abortion from other personal freedoms.

“The majority tells everyone not to worry,” they wrote. “It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)”

Geoffrey R. Stone, a constitutional law professor at the University of Chicago, agrees that challenges to other rights could happen soon, though he said it’s far from certain the Supreme Court will overturn them.

“I think they’re less likely to overturn those decisions because they don’t feel the same degree of popular opposition to those decisions as existed with at least 30 to 40 percent of the American people with respect to abortion.” Stone said. “But who knows?”

(Updates with comment by Lambda Legal’s Jenny Pizer. A previous version of this story corrected the authorship of the dissent.)

--With assistance from Evan Peng.

To contact the reporters on this story:
Erik Larson in New York at elarson4@bloomberg.net;
Emma Kinery in Washington at ekinery@bloomberg.net

To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net

Steve Stroth, Anthony Lin

© 2022 Bloomberg L.P. All rights reserved. Used with permission.