OPINION
Freedoms Are in Jeapardy Be concerned about same-sex marriage and privacy rights in the wake of Roe. By RYAN M. LEACH
The overturning of Roe v. Wade, the landmark Supreme Court decision that established a Constitutional right to abortion, sets the stage for potentially overturning the right for LGBTQ people to be married and even the right to be intimate in the privacy of their own homes. This connection between abortion access and marriage equality may not be obvious at first glance. After all, what does abortion have to do with marriage equality? It actually has little to do with the acts themselves, but rather with the legal rationale upon which the Court had previously conferred these rights to all Americans—namely, the 14th Amendment. In part, the 14th Amendment states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. It is the reference to liberty that is the basis for these decisions. Put simply, the Court held in Roe that when a state prohibits a citizen from the right to obtain an abortion without 16
AUGUST 2022
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due process, they are violating that individual’s constitutional rights. This rationale was similarly used as the basis for Obergefell and Lawrence, the cases that granted the right to marriage equality and private consensual sex, respectively. Dobbs v. Jackson Women’s Health is the case that overturned Roe, thus jeopardizing all other decisions with a rationale based in the “liberty” granted by the 14th Amendment. In other words, Obergefell and Lawrence are now like houses built on quicksand; they may be standing now, but they won’t stand for long. The conservative movement has certainly been against access to abortion for decades— an opposition based on many things, of course. But the constitutional interpretation offered in Roe was particularly problematic for conservatives because in allowing marginalized groups full access to this concept of liberty, it weakens the political power of the conservative base. When people start getting access to freedoms they were previously denied—some might call this “getting woke”—they tend to enjoy those freedoms and align themselves with leaders who want to preserve them. Justice Clarence Thomas says the quiet part out loud in his solo concurring opinion in Dobbs. He writes clearly that the Court should reconsider cases like Griswold (the right to
contraception), Lawrence, and Obergefell. It is true that the other five justices that voted to overturn Roe said that the decision in Dobbs should not be interpreted to have an impact on those other landmark cases. But then again, what difference does that make? Those five justices have placed no more value on precedent than Thomas has. This is the legal equivalent of the Wild West: anything goes—and anything can go, including marriage equality. The 2022 platform of the Texas Republican Party has stated its intent to do away with trans health care and marriage equality, going so far as to state that marriage is between “one natural man and one natural woman.” Dobbs has provided them with a huge opening here. This is relevant because Republicans need wedge issues in order to distract and curry favor with voters. Now that abortion has been dealt with (to a degree), it’s back to their LGBTQ fear-mongering. The question remains: should LGBTQ people be concerned about our marriage and privacy rights? The answer is yes. Always. Especially in Texas. Overturning Obergefell may not happen ➝
