Fundamental LGBTQ Rights Also Under Attack In Leaked Supreme Court Draft
Millions of Americans were shocked Monday night by a leaked draft of a Supreme Court opinion to overturn Roe v. Wade — a decision that, if finalized, would reverse 50 years of precedent ensuring a woman’s right to choose to have an abortion.
But that’s not the only stunning attack on established constitutional rights in the court’s draft majority opinion, first obtained by Politico.
Conservative Justice Samuel Alito, who authored the draft opinion, also specifically criticizes the landmark civil rights cases that legalized marriage equality, Obergefell v. Hodges, and that legalized private consensual sex, Lawrence v. Texas.
Referencing those two cases, Alito eerily says that, like abortion rights, “None of these rights has any claim to being deeply rooted in history.”
Both Alito and Justice Clarence Thomas have already publicly called for revisiting same-sex couples’ constitutional right to marry. In October 2020, they described the court’s 2015 decision on marriage equality as putting “a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment.”
“By doing so undemocratically, the court has created a problem that only it can fix,” Alito and Thomas said at the time. “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
That Alito is now tying his criticisms of marriage equality to an actual draft court opinion to overturn a 50-year precedent on abortion rights should be a blaring siren for anyone concerned about constitutionally protected LGBTQ rights.
“The concern for us is what’s next with this right-wing Supreme Court,” Sen. Mazie Hirono (D-Hawaii) told HuffPost. “I can tell you Obergefell is on Justice Alito’s and Justice Thomas’ hit list.”
As Slate’s Mark Joseph Stern points out on Twitter, at the heart of Alito’s opinion is a scathing repudiation of “unenumerated rights” that are not laid out in the Constitution.
“The Supreme Court may only protect these rights, Alito says, if they are ‘deeply rooted’ in history. Abortion is not. Neither is same-sex marriage,” Stern says.
Senate Republicans dismissed the idea that Alito’s criticisms are a sign that LGBTQ rights are next on the court’s chopping block.
“I’m not aware of any concerted effort to get Obergefell overturned, and I don’t think that this opinion will result in that happening,” said Sen. Josh Hawley (R-Mo.). “I’d be shocked if that happened. I just don’t see it.”
He said even though he thinks Obergefell “was wrongly decided,” he still sees it as settled law.
Sen. John Cornyn (R-Texas) similarly said he didn’t think the draft decision would necessarily be applied to other rulings like same-sex marriage.
Asked if he thinks the court should challenge Obergefell, he wouldn’t say.
“I think we got enough to think about today,” said Cornyn.
But it’s not lost on LGBTQ rights advocates that Alito intentionally referenced same-sex marriage rights in the context of eviscerating women’s reproductive rights.
Jim Obergefell, the lead plaintiff in the landmark marriage equality case, said in a statement that it is “concerning” that some on the Supreme Court are eager to lump them all together.
“The sad part is in both these cases, five or six people will determine the law of the land and go against the vast majority of Ohioans and Americans who overwhelmingly support a woman’s right to make her own health decisions and a couple’s right to be married,” said Obergefell, who is currently a candidate for an Ohio House seat. “This is a sad day, but it’s not over. We have fought the good fight for too long to be denied our rights now.”
Republican senators insist the Supreme Court's landmark same-sex marriage ruling was 'wrongly decided' but decline to 'wade into' it amid leaked abortion opinion
The Supreme Court's potential overturning of Roe v. Wade has Democrats warning that same-sex marriage is next.
But Republican senators told Insider they don't care to re-litigate it and are skeptical the court would go there.
Sen. Josh Hawley said marriage equality is "settled law" and he'd be "shocked" if it was overturned.
Following the leak of a draft majority Supreme Court opinion that would revoke the constitutional right to an abortion established by Roe v. Wade, Democrats and constitutional scholars alike are warning that other rights, including to same-sex marriage and contraception, could be at risk.
The high court's landmark 1973 abortion ruling is rooted in the rights to privacy and liberty. The Supreme Court's 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage, is similarly rooted in these rights and — like abortion — isn't enumerated in the Constitution or historically accepted in American society. Furthermore, critics argue that overturning a 49-year-old decision undermines the Court's tradition of respecting precedent, particularly on more controversial issues like marriage equality.
"Will they have the Supreme Court overrun Obergefell so that they can prevent same-sex marriage?" Senate Majority Leader Chuck Schumer asked rhetorically during a hastily-arranged press event on abortion rights on the steps of the Capitol on Tuesday.
"They may say, we wouldn't do that because of precedent," he added. "Why would anyone believe them?"
Insider spoke with nearly a dozen Republican senators at the Capitol on Tuesday, asking each of them whether they believed the draft opinion threatens marriage equality and whether they would support overturning Obergefell v. Hodges. None gave a clear yes or no answer, and several outright declined to comment.
Republican Sen. Mike Braun of Indiana, who recently faced criticism for telling reporters in Indiana that he believes interracial marriage should've been left up to the states instead of decided by the Supreme Court, told Insider that he had "no idea" whether Obergefell could be overturned. He argued the case was "a narrow consideration just on an issue that's been contested for like 49 years."
"I'm gonna not wade into any of that," he said with a laugh when asked whether he would support outlawing same-sex marriage.
But their answers reveal a political party that remains unsure of its stance on the issue nearly 7 years after the ruling. A June 2021 Gallup poll found that 70% of Americans support same-sex marriage, and a handful of Republicans indicated that they believe the issue is settled.
As Republican-controlled states pass laws targeting transgender people, the far-right levels accusations of "grooming" against LGBTQ Americans, and Florida forbids teaching children about sexual orientation and gender identity, Democrats are eyeing the conservative-dominated court with increasing consternation.
A 'uniquely divisive decision'
In his 98-page draft opinion, conservative Associate Justice Samuel Alito explicitly argues that the Court's decision to revoke the right to an abortion wouldn't impact other similarly-derived rights.
"Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," Alito wrote.
But Alito argues that abortion isn't mentioned in the Constitution, nor traditionally accepted in the US, while invoking Washington v. Glucksberg, a 1994 ruling that determined assisted suicide is not protected by the Due Process Clause of the 14th amendment. That case gave rise to the "Glucksberg test," which holds that any right not specifically named in the Constitution must be "deeply rooted in this Nation's history and tradition."
But these arguments alarm proponents of same-sex marriage, including Democratic Sen. Tammy Baldwin of Wisconsin, the first openly LGBTQ person elected to the Senate and one of just two currently serving.
They point out that same-sex marriage is also neither enumerated in the Constitution, nor traditionally practiced. Both rights are derived from the 14th Amendment right to liberty and the 4th Amendment right to privacy. Same-sex marriage is also derived from the Equal Protection Clause.
"Yes, yes," Baldwin told Insider when asked whether she believed the Roe opinion puts Obergefell at risk. "The underlying rationale could apply equally to issues like contraception issues, like the freedom to marry for LGBTQ individuals."
Republican Sen. Josh Hawley of Missouri told reporters on Tuesday that the draft ruling was a "really good opinion," and specifically praised Alito's use of the Glucksberg test. "I think that's the standard the court should use going forward," he said.
Proponents of overturning Roe also argue that the constitutional right to an abortion isn't "settled law" because it's remained controversial among the American public since it was decided. But conservatives seem to believe that same-sex marriage is "settled" and thus protected from revocation because it isn't as fiercely debated in the public square.
Hawley said that he'd be "shocked" if Obergefell was also overturned because, unlike with abortion, there's little popular appetite to revoke same-sex marriage rights.
"I think that Obergefell was wrongly decided, but I also think that at this point it is also settled law," he said. "I'm not aware of any concerted effort to get Obergefell overturned, and I don't think that this opinion will result in that happening. I'd be shocked if that happened. I just don't see it."
Republican Sen. Ted Cruz of Texas echoed that argument, telling Insider that Roe v. Wade was a "uniquely divisive decision" in contrast to same-sex marriage, which enjoys broad support.
"Look, I've said multiple times, I think Obergefell was wrongly decided," said Cruz. "It's not clear to me that there are pending challenges in the legal system to overturn it, and by any measure, we have not seen the level of fundamental societal division that Roe has inculcated for 50 years."
And in a sign that same-sex marriage is increasingly in the rear-view mirror for conservatives, veteran Republican Sen. Roger Wicker of Mississippi initially did not even recall the Obergefell decision.
"I don't know that case," he told Insider. Once refreshed, he said he believed "that issue is over and done."
Republican Sen. Lindsey Graham of South Carolina told Insider that the right to same-sex marriage relies on "a different legal theory" than the right to an abortion, and he's "not so sure that the two relate to each other."
"I leave that up to the court," he said when asked whether he supports the overturning of Obergefell.
"I have no idea," said Republican Sen. Mitt Romney of Utah of the possibility that the court could also revoke marriage equality.
And Republican Sen. John Cornyn of Texas — who recently compared Obergefell to the 1896 Plessy v. Ferguson decision that permitted racial segregation laws and said the 2015 ruling created a "right that is not even mentioned in the Constitution" — told Insider that he doesn't think concerns about Obergefell's overturning are a "reasonable inference" based on the language of the leaked draft.
But Cornyn declined to say whether he'd support overturning Obergefell, walking away as Insider asked repeatedly.
'I'm not even going to entertain this whole thing'
A handful of other Republicans sought to dodge commenting on the implications of the potential ruling, focusing on the fact that the draft became public as the result of an unprecedented leak.
Senate Minority Leader Mitch McConnell led Republicans in claiming without evidence that the leak was perpetrated by the left as he sought to divert attention from the substance of the opinion.
"That's not the story for today," McConnell told reporters at his weekly press conference on Tuesday, arguing that the press should "concentrate on what the news is today; not a leaked draft, but the fact that the draft was leaked."
Republican Sen. Marco Rubio of Florida told Insider that he had "no idea" whether the draft opinion meant Obergefell could be overturned and said he was "not going to read a leaked document."
"Right now I'm not even going to entertain this whole thing about this leaked document," he said. "This is nothing but an effort to rile up a mob to go out with pitchforks in front of the Supreme Court and try to intimidate justices."
Sen. John Barrasso of Wyoming, the chair of the Senate Republican Conference, told Insider that he didn't want to "speculate" on the implications of the opinion and said the leak was "a huge violation of integrity of the court."
And Sen. Rand Paul of Kentucky told Insider that he'll "probably just wait until there's an official opinion to comment" and said he didn't "have anything new to say" on whether Obergefell should be overturned.
While the general disinterest by Republican senators in re-litigating Obergefell may have little bearing on whether the Court itself could overturn the ruling, it would ultimately fall to both chambers of Congress to pass a law codifying marriage equality into law, as Schumer has vowed to attempt with abortion rights. Asked whether she believes that enough votes could exist for such a bill, Baldwin simply offered that Democrats "will fight."
Perhaps the most candid response from a Republican senator on Tuesday came from Sen. Kevin Cramer of North Dakota, who said that while he has religious and cultural objections to same-sex marriage, he doesn't "know why the government ever got into the business, frankly." Cramer echoed Alito's argument that abortion and same-sex marriage are fundamentally different.
"It's not dangerous, like taking a life is," he said, referring to abortion. "So to me, the magnitude of the outcome is not the same."
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