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Why Experts Are Concerned About Same-Sex Marriage After the Roe v. Wade Leak

We’re still processing the implications of the draft-opinion leak indicating that the Supreme Court may overturn Roe v. Wade. If made official, this decision would leave the legal status of abortion up to the discretion of the states, 26 of which are either certain or likely to ban abortion when the Court allows it. And while this draft opinion only directly affects abortion rights, it has the potential to set a concerning precedent for other rights, including marriage equality, IVF, contraception, and more.

Roe v. Wade and Unenumerated Rights

To understand why, it’s helpful to understand that Roe v. Wade depends on the right to privacy. This right is “implied,” or unenumerated — meaning that while it’s not explicitly stated in the Constitution, it is recognized based on the Supreme Court’s interpretation of several amendments that “protect our freedom to make certain decisions about our bodies and our private lives without interference from the government,” according to the American Civil Liberties Union (ACLU).

This includes the Fourteenth Amendment and the doctrine of substantive due process, which “interprets the Constitution’s explicit protection of ‘liberty’ to protect certain unenumerated rights,” Cary Franklin, a professor at UCLA School of Law and faculty director of the Center on Reproductive Health, Law, and Policy, who specializes in constitutional law and anti-discrimination law, says. The Supreme Court has primarily relied on this doctrine for its abortion decisions, Franklin says, defining unenumerated rights through history as well as changing social practices and values. “This approach accepts that broadly-worded constitutional protections — such as the constitutional protection for liberty — are susceptible to (in fact, require) new interpretations over time as new generations of Americans come to appreciate more fully the meaning of that term,” Franklin tells POPSUGAR.

Abortion is far from the only Supreme Court case that rests on this interpretation of unenumerated rights. Cases establishing the legality of contraception, interracial marriage, and same-sex marriage are among the Supreme Court’s other rulings based on this same precedent. If the Court reverses the original ruling on Roe, the fear is that these other decisions, which are based on the same legal logic, could be the next to go.

Overturning Roe Could Set a Precedent for Same-Sex Marriage

This concern is understandable when you consider the conservative justices’ history-centric view on unenumerated rights. They believe that “the meaning of the word ‘liberty’ in the Constitution should be understood as frozen in time, that liberty means only what it meant in 1868, when the [Fourteenth] Amendment became part of the Constitution,” Franklin explains. Justice Samuel Alito gestures toward this belief in his draft opinion, which notes that unenumerated rights must be “deeply rooted in this Nation’s history and tradition.” This phrase is a quote from a previous Court decision, Washington v. Glucksberg, in 1997; as Vox pointed out, Alito used this exact phrase in his dissent on Obergefell v. Hodges — the 2015 case that made same-sex marriage legal in the United States. There, Alito stated that “it is beyond dispute that the right to same-sex marriage is not among those rights [rooted in US history and tradition].”

You could argue that the right to abortion is in fact “far more deeply rooted” than the right of same-sex marriage, Franklin says: “Justice Alito and a number of the Justices likely to sign on to his opinion in Dobbs have already explained, in their dissenting opinions in Obergefell, that if their constitutional understanding of liberty prevailed, the Fourteenth Amendment would not guarantee same-sex couples the right to marry.”

“There are all sorts of ways to lessen constitutional protections for same-sex couples and LGBT[Q+] people . . . and Dobbs is likely to facilitate these efforts.”

In the draft opinion on Dobbs v. Jackson Women’s Health, Justice Alito seems to anticipate this concern. He lists 14 cases that could arguably be challenged if Roe is overturned, but then writes that because these cases don’t support the right to abortion, “our conclusion . . . does not undermine them in any way.” This ruling, Alito says, pertains only to abortion because abortion involves “critical moral question.” He says that just because other cases, such as same-sex marriage, follow the same reasoning doesn’t mean this opinion could be applied to overturn them: “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.”

However, many politicians and experts, including Franklin, disagree. President Joe Biden said on May 3 that the draft opinion, if made official, “would mean that every other decision relating to the notion of privacy is thrown into question.” He called out marriage equality as a specific area of concern: “Does this mean that in Florida, they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida? . . . [I]t’s a fundamental shift in American jurisprudence if [the ruling] were to hold.”

Vice President Kamala Harris echoed this opinion in a recent video for “People,” saying that “the right to privacy that forms the basis of Roe is the same foundation used to recognize other important rights, such as the right to use contraception and the right to marry someone of the same sex — someone you love.”

Not all experts agree that a Roe overturn will result in a cascade of challenges to other rights, including same-sex marriage. “There’s no national movement to overturn Obergefell,” South Texas College of Law Professor Josh Blackman told Politico. “There is no jurisdiction in the country that wants to ban interracial marriage.”

David French, a contributing writer at The Atlantic who has long litigated and written about abortion, says that while Obergefell might face a challenge, a reversal ultimately won’t succeed. This is partially because in the draft opinion, Alito emphasizes the difference between abortion and the other rights established under the right to privacy. “Abortion involves harm to a non-consenting party, the ‘potential life’ (to use the language from Roe) of the unborn child,” French explained in an essay for The Atlantic. In contrast, he says, rights like same-sex marriage and interracial marriage involve consenting adults.

To Franklin, however, these reassurances amount to “a terrible gaslighting” of the American public. “The interpretive approach the Court seems poised to adopt . . . directly implicate[s]” LGBTQ+ rights, she says. The Court may “lack the political or ideological will” to take on anti-LGBTQ+ cases and strip these people of their rights, she says, “[b]ut I wouldn’t count on it. There are all sorts of ways to lessen constitutional protections for same-sex couples and LGBT[Q+] people — indeed, the Court is already engaged in that project — and Dobbs is likely to facilitate these efforts.”

What Happens Now?

So, what do we know for sure? First of all, Roe v. Wade has not yet been overturned — Justice Alito’s opinion is still a draft, which means justices could theoretically change their votes before the Court hands down an official ruling. (That means, too, that abortion is still currently legal.) We also know that, whatever the ultimate ruling on Roe and Dobbs, this case only directly affects the right to abortion. Any other rights that could be impacted, such as the right to contraception and same-sex marriage, will not immediately change, regardless of the final outcome.

The question is whether overturning Roe would pave the way for challenges to other privacy-based rights that, arguably, are also not “deeply rooted” in American history and tradition. Justice Alito says no, but many experts think it’s only a matter of time before similar cases start making their way to the Court, where the Dobbs reasoning — despite Alito’s assurances to the contrary — could be used as precedent for other overturns. Only time can tell whether this will be the case. In the meantime, the best thing we can do is channel frustration and anger into action by supporting abortion-rights groups and organizations that advocate for LGBTQ+ rights.

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