By John Lewis and Stuart Gaffney–
Today, we address the critical issue of whether the U.S. Supreme Court’s already notorious anti-abortion decision Dobbs v. Jackson Women’s Health Organization also threatens LGBTIQ people’s freedom to marry and our other core constitutional rights. Even having to write about this subject—much less our community’s having to wonder whether our basic constitutional rights are now in jeopardy—undermines our dignity as Americans that the Supreme Court just seven years ago assured us was protected under the fundamental principles of constitutional democracy set forth in the Constitution.
Before addressing the implications of Dobbs on LGBTIQ rights, we want to underscore that the decision as it pertains to eliminating the constitutional right of women (and some nonbinary, intersex, and transgender people) to abortion is deeply misguided and wrong. Whereas Roe v. Wade was a bipartisan 7–2 decision with a Republican nominee writing the majority opinion and three other Republican nominees joining the decision, Dobbs was a strictly partisan decision with five very conservative Republican Justices constituting the majority and one Republican Justice concurring in the result, with all three Democratic Justices dissenting.
The Court’s historical analysis upon which the decision depends grossly distorts significant parts of the record. The majority apparently wants to take elements of our society, in particular women’s rights to freedom and autonomy, back to the 18th century. Indeed, the constitutional provisions at issue in the case were written before women even had the right to vote, much less the ability to participate meaningfully in the political process. Particularly appalling to us was the majority’s citing with approval a 1732 magazine article, reporting on a criminal case in which a woman was sentenced to “two days in the pillory and three years’ imprisonment” for helping a woman terminate a pregnancy.
When the Supreme Court upheld Roe thirty years ago in 1992, it recognized that all Americans have the freedom under the Constitution to make “intimate and personal choices” that are “central to personal dignity and autonomy.” It described how “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Other Justices have described this freedom as ‘’the most comprehensive of rights … namely ‘’the right to be let alone.’’
The majority itself apprehends that the “fundamental moral question” posed by abortion “is ageless.” That recognition alone should mean that women who become pregnant should have the essential freedom of conscience to determine for themselves what is appropriate and not be compelled to carry a pregnancy to term against their will.
The Republican majority in Dobbs jettisons this deeply rooted and cherished constitutional right to personal freedom and self-determination in favor of an exceedingly narrow view of constitutional rights confined to their selective interpretation of historical conditions at the time of a particular provision’s enactment. Their doing so raises concern that the Court could apply the same type of analysis to take away marriage equality and other LGBTIQ constitutional rights. Indeed, Justice Thomas wrote in a concurring opinion in Dobbs that he would like to do essentially just that in future cases.
However, it is very important to recognize that the majority opinion combined with Justice Kavanaugh’s concurring opinion together emphasize multiple times that the Dobbs decision regarding abortion in no way undermines marriage equality or LGBTIQ people’s right to sexual intimacy. The majority claims a critical difference between abortion and contraception, sexual intimacy, and marriage equality; it asserts that abortion “destroys” a “potential life.”
The majority expressly states: “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.”
In response to the dissent’s well-founded suspicion as to the sincerity of the majority’s assurances, the majority repeats their promises verbatim, asserting their guarantees are “unequivocal” and explaining explicitly that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves … ‘potential life.’” The majority declares that the dissenters’ “fear” that the Dobbs decision “will imperil those other rights” is “unfounded.” It even exclaims: “It is hard to see how we could be clearer.”
The majority further states that without decisions such as the Obergefell marriage equality decision that reversed prior rulings, “American constitutional law as we know it would be unrecognizable, and this would be a different country.” And Justice Kavanaugh wrote a separate concurrence mentioning, “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
The majority’s multiple avowals that the precedents protecting marriage equality, sexual intimacy, and contraception are safe strongly suggest that currently there are not five Justices who want to overturn these decisions. We know the 3 Dobbs dissenters do not, as well as Kavanaugh and presumably Roberts who did not vote to overturn Roe at this time.
But we also know that it is exceedingly likely that Justice Alito, who authored the Dobbs decision, does not agree with the assurances he himself offers in the opinion. Just two years ago, Alito and Thomas wrote an opinion all but inviting potential litigants to challenge Obergefell. We hope that Kavanaugh was not the only Justice who insisted that the assurances be part of the majority decision, but we have insufficient information to know where Gorsuch and Barrett stand.
One thing we know for sure, though, is that the degree to which marriage equality and other LGBTIQ constitutional rights appear not to be in immediate peril is the result of countless queer people, along with our friends and family, coming out, standing up, and raising our voices loud and clear. The urgency to continue doing so has never been greater.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
Published on July 14, 2022
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