Roe v Wade: Is gay marriage at risk?

by Benjamin Ryan
Wednesday, 4 May 2022 17:00 GMT

Supporters of gay marriage wave the rainbow flag after the U.S. Supreme Court ruled on Friday that the U.S. Constitution provides same-sex couples the right to marry at the Supreme Court in Washington June 26, 2015. The court ruled 5-4 that the Constitution's guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages. With the ruling, gay marriage will become legal in all 50 states. REUTERS/Joshua Roberts

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A strikedown of abortion rights could encourage other challenges to landmark civil rights rulings, LGBTQ+ rights groups warn

* LGBTQ+ groups say abortion case puts civil rights at risk

* If Roe falls, other test cases could be brought

* Trump court appointees likely to hold balance in any case

By Benjamin Ryan

NEW YORK, May 4 (Openly) - A leaked U.S. Supreme Court opinion suggesting justices are poised to overturn abortion rights has left LGBTQ+ advocacy groups fearful that same-sex marriage could also be at risk.

If finalized, the opinion would strike down the landmark 1973 Roe v. Wade case that established the right to abortion.

LGBTQ+ advocates fear that it could open the door to legal challenges targeting gay marriage and other landmark civil rights rulings at the country's top court, which holds a six-to-three conservative majority.

Some expressed concerns that after decades of advances in civil rights protections for LGBTQ+ Americans, the court could also overturn the prohibition on anti-sodomy laws. 

Here are the key facts:

Why has this case raised concern over LGBTQ+ rights?

Many key civil rights were secured through legal rulings.

The Supreme Court established the right of same-sex couples to marry in the 2015 Obergefell v. Hodges decision, a historic victory for LGBTQ+ rights groups.

Previously, the 2003 Lawrence v. Texas decision legalised gay sex by striking down state sodomy laws.

However, same-sex unions are still opposed by a substantial minority of Republicans, and some religious groups, who believe that marriage should only be between a man and a woman. 

The leaked draft ruling on abortion has raised fears that other landmark civil rights cases could also face legal challenges in the Supreme Court.

"A draft like this attacks abortion access, and also countless settled legal precedents on which generations of people in this country have relied," said Camilla Taylor,  deputy director for litigation at the LGBTQ+ group Lambda Legal.

Overturning Roe will have "no immediate impact" on any other case, said Sarah Warbelow, legal director for Human Rights Campaign (HRC), the largest U.S. LGBTQ+ advocacy group.

"But it encourages state lawmakers pandering to (their political) base to test the limits of court recognized LGBTQ+ equality," she said in a statement.

How could same-sex marriage be overturned?

LGBTQ+ legal experts said that to overturn Obergefell, opponents of same-sex marriage could create a test case similar to the abortion restrictions in Mississippi that handed the Supreme Court the opportunity to overturn Roe.

A conservative state legislature could pass a law banning same-sex marriage, or a governmental agency that provides spousal benefits could refuse to recognize the relationship.

This would leave the door open to a legal challenge by same-sex marriage supporters.

The lower courts would most likely rule in favor of same-sex marriage because they would be compelled to follow the Obergefell decision, which found that gay couples have a constitutional right to wed.

But once such a case reached the Supreme Court, the key Obergefell ruling would be vulnerable to being overturned in a ruling by conservative justices.

Did the draft abortion opinion mention same-sex marriage?

The leaked opinion, written by staunch conservative Justice Samuel Alito, references a litany of landmark civil rights cases, from Lawrence and Obergefell to rulings establishing the rights to interracial marriages and weddings among prisoners.

Alito argued the question of abortion differs from the others because it involves the loss of a "potential life".

That distinction means overturning Roe does not undermine other civil rights precedents, including the right for same-sex couples to marry, he wrote.

Legal experts said that such a caveat – coming from a justice who dissented in Obergefell and who has a history of making statements opposing LGBTQ+ rights – offers little reassurance.

"The artificial efforts to fence off certain precedents because they're not currently before the court is unconvincing; it is a fig leaf," said Taylor.

How might justices vote on a gay marriage case?

Of the current members of the nine-strong Supreme Court, the conservative Justices Clarence Thomas and Alito and Chief Justice John Roberts dissented in Obergefell.

Liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor were in the majority of the landmark five-to-four decision.

Breyer is set to retire at the end of this term and will be replaced by Judge Ketanji Brown Jackson, who has been hailed by HRC as a likely supporter of LGBTQ+ rights on the court.

These dynamics suggest a majority ruling would hinge on the decisions of the remaining three justices, all of whom were appointed by former President Donald Trump.

Potential justices often hold their cards close on hot-button legal issues during their confirmation hearings, leaving court watchers to read sparse tea leaves for clues.

Brett Kavanaugh's approach to gay rights was unknown when he was appointed to the court, but he dissented against a landmark 2020 ruling barring discrimination against gay and transgender workers.

Fellow Trump nominee Amy Coney Barrett's appointment to the court was greeted with dismay by LGBTQ+ rights groups.

She defended the justices who dissented against the Obergefell ruling in a 2016 lecture, suggesting the issue should have been left to legislators.

Finally, Neil Gorsuch has a track record of voting broadly in favour of LGBTQ+ rights - including authoring the majority opinion on workplace protections for LGBTQ+ people.

However, some legal experts argue his stance is more based on his particular approach to interpreting the law as opposed to fully fledged support for LGBTQ+ rights.

"I'm really scared again," said Sophy Jesty, a plaintiff along with her wife, Valeria Tanco, in the Obergefell case.

"It's super concerning personally to have my rights as a married person be again hung in the balance."

Related stories:

U.S. states moving to restrict abortion rights and access

U.S. abortion war spotlights women's risk from online tracking

FACTBOX: Same-sex marriage around the world as Swiss vote in favour

(Reporting by Benjamin Ryan @benryanwriter; Editing by Sonia Elks and Hugo Greenhalgh.  Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly. Visit http://news.trust.org)

Openly is an initiative of the Thomson Reuters Foundation dedicated to impartial coverage of LGBT+ issues from around the world.

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