Is Same-Sex Marriage Next if Roe Falls?
The leaked draft opinion that would take away the constitutional right to abortion sent mixed signals about what other precedents might be at risk.
When the Supreme Court heard arguments in December about the constitutional right to abortion, it was already clear that other rights, including same-sex marriage, could be at risk if the court overturned Roe v. Wade.
Justice Sonia Sotomayor said that the logic of that legal earthquake would cause a legal tsunami that could wipe out other precedents as well.
The justices' questions about what would happen in the bigger picture if a decision was made to take away the right to an abortion were probing, but they were also vague and conditional. The release on Monday of a draft opinion that would overturn Roe, the 1973 decision that established a constitutional right to abortion, has made these questions urgent and clear.
Justice Samuel A. Alito Jr.'s opinion sent mixed messages about how far it went and what it meant. On the one hand, he said, in a way that sounded like a disclaimer, that other rights would still be safe.
"To make sure that our decision isn't misunderstood or misrepresented, we want to be clear that it only affects the constitutional right to abortion," he wrote. "Nothing in this opinion should be taken as questioning precedents that don't have to do with abortion."
On the other hand, the reasoning behind the opinion left a lot to be said about.
It said that you can't find a right to abortion in the Constitution or figure it out from what it says. Using the general reasoning of the draft opinion, you could say the same thing about contraception, gay intimacy, and same-sex marriage. These are rights that were established by three Supreme Court decisions that were talked about at length during the December argument.
Justice Sotomayor and Mississippi's solicitor general, Scott Stewart, got into a fight at the argument. Stewart was defending a state law that bans most abortions after 15 weeks of pregnancy.
She said of the other decisions, "I'm not trying to say that we should change them." "I just think you're trying to fool me when you say that any decision made here wouldn't affect those."
Mr. Stewart tried to say that the three other rulings were different from Roe because they were clearer, the public trusted them more, and they did not "involve the intentional ending of a human life."
Justice Sotomayor was not impressed, saying that all of the cases were based on the same kind of constitutional reasoning. She said, "I'm not sure how your answer makes sense."
The draft opinion by Justice Alito is three months old, and it is almost certain that later drafts have made his arguments clearer and stronger. But the reasoning in the draft has worried people who support gay rights. They say that if the final opinion is the same as the draft, it could put at risk victories that were hard-won.
Sarah Kate Ellis, president of GLAAD, said in a statement, "None of us are safe from the extreme anti-women and anti-LGBTQ ideology that now dominates this court."
Justice Alito, on the other hand, hasn't been shy about how much he dislikes Obergefell v. Hodges, the 2015 ruling on same-sex marriage. In 2020, when the court rejected an appeal from a county clerk who had been sued for refusing to give marriage licenses to same-sex couples, he agreed with a statement written by Justice Clarence Thomas that said the decision was against the Constitution.
The statement said, "In Obergefell v. Hodges, the court read a right to same-sex marriage into the 14th Amendment, even though that right is not in the text."
The draft opinion makes the same point about the right to an abortion. So, Justice Alito's attempts to tell the difference between the two questions may seem half-hearted to some people.
Justice Alito's main point of difference was that there was an important moral value at stake in both Roe and Planned Parenthood v. Casey, which reaffirmed Roe's main point in 1992.
"Roe's supporters say that the right to an abortion is similar to rights recognized in past decisions about things like intimate sexual relations, contraception, and marriage," Justice Alito wrote. "But abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law before us now calls a "unborn human being."
Justice Alito looked at the cases that Roe and Casey used to back up their decisions to protect abortion. There were ones about marriage between people of different races, the right of prisoners to get married, the right to live with family, the right to choose how one's children are educated, and the right not to be sterilized without consent.
He also mentioned two "post-Casey decisions" from 2003, Obergefell and Lawrence v. Texas, which overturned a Texas law that made it illegal to have sex with a gay person.
Then, careful writer Justice Alito seemed to make a difference between the two sets of decisions.
"None of the other decisions Roe and Casey brought up dealt with the important moral question that abortion raises," he wrote. "Therefore, they don't fit. They don't agree that you should be able to get an abortion, and our finding that the Constitution doesn't give you that right doesn't hurt them in any way, either.
Perhaps it was telling that that part of the draft opinion didn't say whether or not its conclusion hurt the two decisions on gay rights made after Casey.
In general, Justice Alito wrote that he was worried about "attempts to justify abortion by appealing to a broader right to autonomy," which he said "could open the door to illegal drug use, prostitution, and other things that violate basic rights."
"None of these rights can claim to have deep roots in history," he said, which is also true of same-sex marriage.
In a brief supporting the abortion providers who challenged the Mississippi law, the Biden administration said that overturning Roe and Casey "would also threaten the court's precedents holding that the due process clause protects other rights, including the rights to same-sex intimacy and marriage, to interracial marriage, and to use contraception."
"None of these things are mentioned directly in the Constitution," the brief said, "and most of them were illegal before the 14th Amendment was passed."
Michael C. Dorf, a law professor at Cornell, said that it is hard to figure out the reasoning behind published Supreme Court opinions, let alone drafts. He said, "Logic and syllogisms don't get us very far in law."
If the draft or something like it comes out in the next few weeks, he said, "it means big changes are coming because it shows that the five most conservative justices are willing to risk controversy on issues they care about."
In the draft opinion, Justice Alito said, "We can't let outside influences, like worrying about how the public will react to our work, change our decisions."
News organizations that were at a judicial conference in Atlanta on Friday said that Justice Thomas brought up the same point. "We can't be a place where you can threaten us into giving you what you want," he said. "The things that happened earlier this week show that."
Still, the court rarely goes against public opinion by a lot, and support for marriage between people of the same gender is high and growing.
Justice Thomas was said to have voted with Justice Alito and the three justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, who were all appointed by President Donald J. Trump, in the abortion case.
Mr. Trump had said that he would appoint justices who would overturn Roe, and the draft opinion seems to show that he is almost there. He was more open to the ruling on same-sex marriage, which his appointees may or may not agree with.
In an interview on "60 Minutes" shortly after the 2016 election, which showed that he had a flexible view of the power of precedent, he said that the court should overturn Roe, which has been upheld many times and has been around for more than 40 years.
He said that the decision about same-sex marriage from the year before was a different story.
He said, "It's the law." "The Supreme Court made up its mind. It's done, right?"