Millions of Americans were shocked Monday night by a leaked draft of a Supreme Court opinion to overturn Roe v. Wade — a decision that, if finalized, would reverse 50 years of precedent ensuring a woman’s right to choose to have an abortion.
But that’s not the only stunning attack on established constitutional rights in the court’s draft majority opinion, first obtained by Politico.
Conservative Justice Samuel Alito, who authored the draft opinion, also specifically criticizes the landmark civil rights cases that legalized marriage equality, Obergefell v. Hodges, and that legalized private consensual sex, Lawrence v. Texas.
Referencing those two cases, Alito eerily says that, like abortion rights, “None of these rights has any claim to being deeply rooted in history.”
Both Alito and Justice Clarence Thomas have already publicly called for revisiting same-sex couples’ constitutional right to marry. In October 2020, they described the court’s 2015 decision on marriage equality as putting “a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment.”
“By doing so undemocratically, the court has created a problem that only it can fix,” Alito and Thomas said at the time. “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
That Alito is now tying his criticisms of marriage equality to an actual draft court opinion to overturn a 50-year precedent on abortion rights should be a blaring siren for anyone concerned about constitutionally protected LGBTQ rights.
“The concern for us is what’s next with this right-wing Supreme Court,” Sen. Mazie Hirono (D-Hawaii) told HuffPost. “I can tell you Obergefell is on Justice Alito’s and Justice Thomas’ hit list.”
As Slate’s Mark Joseph Stern points out on Twitter, at the heart of Alito’s opinion is a scathing repudiation of “unenumerated rights” that are not laid out in the Constitution.
“The Supreme Court may only protect these rights, Alito says, if they are ‘deeply rooted’ in history. Abortion is not. Neither is same-sex marriage,” Stern says.
Senate Republicans dismissed the idea that Alito’s criticisms are a sign that LGBTQ rights are next on the court’s chopping block.
“I’m not aware of any concerted effort to get Obergefell overturned, and I don’t think that this opinion will result in that happening,” said Sen. Josh Hawley (R-Mo.). “I’d be shocked if that happened. I just don’t see it.”
He said even though he thinks Obergefell “was wrongly decided,” he still sees it as settled law.
Sen. John Cornyn (R-Texas) similarly said he didn’t think the draft decision would necessarily be applied to other rulings like same-sex marriage.
Asked if he thinks the court should challenge Obergefell, he wouldn’t say.
“I think we got enough to think about today,” said Cornyn.
But it’s not lost on LGBTQ rights advocates that Alito intentionally referenced same-sex marriage rights in the context of eviscerating women’s reproductive rights.
Jim Obergefell, the lead plaintiff in the landmark marriage equality case, said in a statement that it is “concerning” that some on the Supreme Court are eager to lump them all together.
“The sad part is in both these cases, five or six people will determine the law of the land and go against the vast majority of Ohioans and Americans who overwhelmingly support a woman’s right to make her own health decisions and a couple’s right to be married,” said Obergefell, who is currently a candidate for an Ohio House seat. “This is a sad day, but it’s not over. We have fought the good fight for too long to be denied our rights now.”