The Supreme Court Leaked Draft and What it Means for LGBTQ Equality
By: Amira Hasenbush
Are marriage equality and other substantive due process rights at risk of being overturned, based on Roe being overturned? I have been hearing the following question a lot, so I want to answer it as completely as I can based on my opinion and my reading of the draft opinion, but first a few caveats:
Please remember that the leaked draft is exactly that – a draft. We do not know what the final opinion will be, and it’s hard to make any specific judgments or reactions until the final decision comes down.
I am going to provide my opinion and my opinion alone – many will disagree with me – this is based on my reading of the draft in the limited time I could carve out today to do so.
Even though what I am going to say may calm some folks down and quell some fears, it is not meant – even for a second – to keep people from being fired up. The overturning of Roe, if it happens, will be setting this country, democracy, and equality back for generations. It is horrifying to me to see this (probably) happening in the 21st century, and it is all of our jobs to take a stand and make sure that we do everything we can to directly support those who are going to be most disparately impacted by this change and to use our political voices to make sure that where the Supreme Court won’t protect us, our legislators will. Donate to causes that support abortion access, get politically involved, and if nothing else, vote.
The bottom line of the draft opinion is that Alito and his majority hold that abortion was never a fundamental right protected by the constitution, because it was not historically rooted in our nation’s history and traditions. Of course, this calls into question so many other rights that have been held to be protected by the constitution that were not protected at the time of its drafting, including the rights to contraception, interracial marriage and same-sex marriage.
Okay – on to the substantive question. Let’s break this down into two pieces – I’ll be focusing on LGBTQ issues because that is where my expertise lies.
Question #1: If I am in a same-sex/queer marriage, is my marriage at risk of being invalidated?
I think this is the question where there will be the least disagreement among legal authorities. No, your marriage is not at risk of being invalidated. Courts have historically and repeatedly protected marriages that were valid at the time they were entered into, even if they were later deemed invalid. This was true in cases across the country where one spouse transitioned genders, turning their marriage into a same-gender marriage before marriage equality was the law of the land – courts still upheld the validity of the marriages as valid at the time they were entered into, and still valid after the gender transition. This was also true for marriages from San Francisco before Prop 8 took marriage equality away from Californians temporarily. If your marriage was valid at the time you entered into, it will be upheld.
Question #2: Are the following at risk: marriage equality in general, access to same sex marriage in the future for those who may seek to get married, and other substantive due process rights that have been held by the Supreme Court to be protected by the Constitution, even though they are not directly written into the Constitution?
While there is a lot of fear, and certainly no one can predict the future, the draft opinion does what it can to state that this case is about abortion and abortion only. Here is a direct quote:
“…[T]he Solicitor General suggests that overruling those decisions would ‘threaten the Court's precedents holding that the Due Process Clause protects other rights.’ Brief for United States as Amicus Curiae 26 (citing Obergefell v. Hodges, 576 U. 8. 644 (2015); Lawrence v. Texas, 539 U. S. 558 (2008); Griswold v. Connecticut, 381 U. S. 479 (1965)). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, ‘[a]bortion is a unique act’ because it terminates ‘life or potential life.’ 505 U.S, at 852; see also Roe, 410 U.S., at 159 (abortion is ‘inherently different from marital intimacy,’ ‘marriage,’ or ‘procreation’). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Essentially, it’s saying this decision is unique in that abortion is unique.
Now, does this mean that attacks on marriage rights, contraceptive rights and other substantive due process rights won’t flock to the courts with a decision like this? Of course not. Could legislators and other politicians possibly use this decision to attempt to violate people’s civil rights on a variety of levels? Undoubtedly, and the fight will become that much harder. But, if you’re asking me if the Supreme Court will overturn marriage, my personal opinion is that it does not appear to be at risk based upon this draft opinion.
Nevertheless, we must persist. Donate. Act. Vote. Do not back down.