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 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 ➝

tomorrow, but the prospect of it happening sooner rather than later has certainly increased with the overturning of Roe. In states like Texas, laws banning abortion remained on the books even though they were formerly unenforceable because of Roe. The Texas Supreme Court has ruled that these dormant laws (written in the 1920s) are now enforceable in light of Dobbs. The same thing applies to marriage equality. The laws prohibiting marriage equality are still there, but they are currently dormant.

In overturning Roe, the Supreme Court has indicated that it holds nothing sacred. Before, one could argue that “the horse is out of the barn” when it comes to marriage equality. The Court, they could assume, would think twice about invalidating the thousands of legal marriages that have taken place since Obergefell. To do so would cause societal and judicial chaos. It would create chaos, but the solution to chaos is to impose strict order, and Republicans are pros at seizing political power when people are feeling unsettled. Indeed, keeping non-dominant cultures unsettled is their whole game plan. If you set one house on fire, it’s easy to rally the neighbors to help put the fire out. But if you set every house on the street on fire, it’s likely they will all burn to the ground. Scorched-earth tactics are what the Republican Party thrives on.

If I were giving legal advice to LGBTQ Texans, and especially trans Texans, that advice would be to move out of the state. But I get it: not everyone has the ability to move away, and Texas is as much our home as it is anyone else’s. And Texans fight for their home. To that end, what I would recommend is for LGBTQ couples to make sure all of their legal documents have caveats in the event that their marriages are invalidated. This also includes having a will in place. Under normal circumstances in Texas, if a spouse dies and there is no will in place, the surviving spouse is considered the next of kin. If your marriage is deemed invalid, it doesn’t mean that you are no longer married, it means you were never technically married in the first place. If you’re not married and you don’t have a will, then the estate in question is divided up by the courts to various other family members rather than your partner. A local LGBTQfriendly family attorney can give you further guidance on this process.

There is great potential for life to get harder now that Roe has been overturned. I am not an alarmist, but I would suggest moving with haste to make sure your intentions are otherwise legally secured. Whereas before there weren’t laws in place that would prevent things like trans-affirming health care, many Republican lawmakers would like to change that for both children and adults. And now they can. If they can limit access to abortion, they can also limit access to other areas of health care and possibly even things like PrEP for HIV prevention. The guardrails are off, and we should plan accordingly.

Finally, we should also vote for leaders who support our community. If you’re not already registered, be sure to do so now because there is a lot on the line as Texas heads into the midterm general elections on November 8. To find out more about local pro-equality candidates, look into the endorsements of queer organizations like the Houston LGBTQ+ Political Caucus and Equality Texas.

Ryan M. Leach is a native Texan and an attorney licensed in the State of Texas. He is also a former board member for Equality Texas and the Victory Fund.