The leaked draft of the Supreme Court decision by Associate Justice Samuel Alito inDobbs v. Jackson shows that a decision overturning Roe v. Wade and Casey v. Planned Parenthood will be coming before the end of the court's term in June. The rationale behind Alito's decision, according to the draft, is that only rights that are specifically enumerated in the U.S. Constitution or existed in English common law hundreds of years ago are legitimate. Thus, the concept of an inherent right to privacy implied by the 14th Amendment, which underpinned the decision in Roe v. Wade, is soon to be gone. Additionally, this decision upholds "states' rights," a legal argument infamously employed by the South during slavery and Jim Crow.
It's hard to overstate how devastating this will be to civil rights in the U.S., not just for women but for all LGBTQ+ people -- whether abortion rights are a personal issue to them or not. The right to privacy was the basis forGriswold v. Connecticut (1965), which found that the state cannot prevent married couples from obtaining or using birth control. Later, in the case ofEisenstadt v. Baird(1972), the court found that the state could not criminalize providing birth control to unmarried women either. Religious conservatives in the U.S. have made it clear that they plan to target birth control next, and the Supreme Court has cleared the way for it to happen.
But the next dominoes to fall will be the rights of LGBTQ+ people. In 2003, the court found that under the 14th Amendment the state cannot make sodomy or homosexual conduct illegal in the case ofLawrence v. Texas. This paved the way forObergefell v. Hodges in 2015, which found laws prohibiting same-sex marriage to be unconstitutional. At the time, religious conservatives and Republicans were devastated by the decision. But they never forgot, never really gave up, and now they will make overturning it their top priority once the decision in Dobbs v. Jackson is formally handed down.
Alito's opinion states, "Nothing in this opinion should be understood to cast doubt on precedents [Griswold, Lawrence, and Obergefell] that do not concern abortion." However, this is unconvincing to most legal scholars. First, the pillar that upholds all three, namely an implied right to privacy, is gone. Next, his language about "We thus return the power to ... the people and their elected representatives" clearly implies that the court should not decide such "culture war" matters, and they should be left to the states. When Alito talks about only honoring rights that are "deeply rooted in a Nation's history," this seems to mimic some of his previous statements on marriage equality. He also states that the court is not bound by "egregiously decided" precedent, when he made clear in his Obergefell dissent that he considered it to be such.
When Alito's decision is read in its totality, many legal observers consider it a plea for states to bring him cases where he can relitigate these matters. Based on the criteria he has laid out for overturning Roe, he has made it clear how the court should and will rule given its conservative majority. Indeed, in his dissent he wrote that marriage equality "is not the protection of a deeply rooted right but the recognition of a very new right." What Alito has done is the legal equivalent of putting up a 100-foot tall sign in Times Square declaring, "Bring me a case, and I will strike down Obergefell." His opinion tells conservatives exactly what arguments to use to justify the decision he already wants to make.
Conservatives saw this coming a mile away. Sources I have spoken to on the condition of anonymity say that Texas has been planning to challenge Obergefell since last summer. They haven't been subtle about it either: Former Texas Solicitor General (and Senate Bill 8 abortion ban architect) Jonathan Mitchell submitted an amicus brief urging the Supreme Court to overturn Obergefell on the same grounds as Roe. The Texas Attorney General's office and the Alliance Defending Freedom have already rounded up plaintiffs and are ready to launch their assault on Obergefell within weeks of the decision being handed down.
What will happen is that the Texas AG's office will issue a legal opinion that Obergefell is no longer binding. Gov. Greg Abbott will shortly thereafter instruct clerks in Texas to stop issuing marriage licenses to same-sex couples. From there, it goes to district court, then the extremely conservative Fifth Circuit Court of Appeals, and then will be appealed to the Supreme Court, where they have been essentially promised a victory by Alito and the other conservative members of the court. The whole process will take two-three years. Regardless, there is a near zero chance Obergefell will still be standing after June 2025 unless the composition of the court changes radically.
This is also a near impossibility. Biden is likely to lose the Senate in November, and Mitch McConnell has effectively promised not to allow Biden to put anyone else on the Supreme Court. For marriage equality to survive, one or more of several highly improbable things would have to happen: Either Democrats would need to have to hold on to the Senate (by some miracle) and then at least two conservative justices would have to leave before 2024 or they would need two or more Justices to leave within the next three months.
But barring some highly improbable miracle, marriage equality will probably not exist nationally by 2024 -- possibly 2025 at the latest. The LGBTQ+ community needs to accept this fact. After that, conservatives will absolutely look to overturnLawrence v. Texas, and make sodomy or homosexual acts a crime in 12 states again. Passing laws barring transition-related care for trans adults and banning cross-dressing, it's all fair game with Roe gone.
But first, they're going to take out Obergefell, and there's nothing we can do but turn Pride into a day of rage rather than celebration.