How Overturning Roe v Wade Will Rollback Gay Rights and Marriage Equality

The Supreme Court is going to overturn Roe V Wade.

As Politico reported last night: “The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court.”

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

But the new law of the land may have more far reaching effects. As Mark Joseph Stern writes: Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.”

Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.” https://t.co/4690k0KG1F pic.twitter.com/urF7A02INU

— Mark Joseph Stern (@mjs_DC) May 3, 2022

Let me explain what this draft does and doesn’t say about gay rights because I realize the screenshot above doesn’t tell the whole story. There are parts of the opinion in which Alito parrots Kavanaugh’s reasoning—that abortion is “unique” because it involves taking a “life.”

The Daily Beast:

If the reasoning of the draft becomes the majority opinion—and it is worth stressing that this is by no means assured, since it is a draft and may well be watered down by other justices—then it applies equally to Obergefell v. Hodges, which held that all marriages (including my same-sex one) are protected by the Constitution; to Lawrence v. Texas, which held that all intimate sexual activity (including same-sex) was too; and to Griswold v. Connecticut, which held that the right to access contraception is as well.

All those cases held that certain specific rights to bodily integrity and privacy, though unmentioned in the Constitution, are implicit in the broad guarantees of the 14th Amendment, as long as they were part of the “concept of ordered liberty.” It’s not part of the concept of liberty to police a woman’s uterus or a gay man’s bedroom. There are limits to government power, and no process can be “due process” if it transgresses those limits.

But in so-called Originalism, a once-fringe legal theory that is now the gospel of half the Supreme Court, a right must also be “part of the Nation’s history and traditions” to be protected. Sorry, women and gays, you’re not part of our white-male-dominated history and traditions, so the constitution doesn’t protect you.

To be clear, Justice Alito didn’t leave this to speculation. He specifically mentioned Obergefell and Lawrence as examples of the same faulty reasoning behind Roe.

So, in case folks weren’t listening when all those legal Cassandras warned that Roe was going to be overturned, please listen now: Gay marriage is too. Within a year or two. Unless another justice leaves the court, the constitutional right to marriage for all is going to be overturned. The only question is whether Republicans will have a veto-proof majority (or the presidency in 2024) to ban both abortion and gay marriage anywhere in the nation.

I’m not sure where that leaves my custody of my child, but I can tell you that I am certain that my family will not be protected by the Constitution two years from now.