If the Supreme Court Overturns ‘Roe,’ Could Marriage Equality Be Next?

A draft opinion leaked by Politico Monday shows that the Supreme Court has voted to strike down the landmark Roe v. Wade decision, which would overturn 50 years of constitutional protection for abortion rights if made final. Now, a question arises surrounding if other fundamental rights, including marriage equality, could be threatened next, using similar reasoning that opponents of Roe used in the Supreme Court case, Dobbs v. Jackson Women’s Health Organization.

The Supreme Court ruled in favor of the fundamental right of same-gender couples to marry in Obergefell v. Hodges in 2015, but reasoning suggested by Justice Samuel Alito to overturn Roe v. Wade could set a harmful precedent for this landmark decision and other newly recognized rights.

Roe v. Wade and Planned Parenthood v. Casey are considered crucial to the history of abortion rights in the United States, with the former establishing the right to abortion as a fundamental right and the latter reaffirming that right with some restrictions in 1992.

Alito writes that the cases must be overturned in the document obtained by Politico, given that the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Alito also claims that abortion was “entirely unknown in American law … until the latter part of the 20th century,” which could also apply to other fundamental rights that are newly established, including marriage equality.

Though, the judge also states the same reasoning—that abortion does not deserve constitutional protection because it is not rooted in the country’s traditions and Constitution—does not apply to other recently recognized rights. Alito says that abortion rights are “fundamentally different” from other rights involving “intimate sexual relations, contraception, and marriage.”

Despite this notion, some still believe Alito’s reasoning won’t apply to LGBTQ rights.

Slate journalist Mark Joseph Stern argues that, while Alito assures rulings on interracial marriage and contraception won’t be affected by overturning Roe and Casey, he doesn’t mention critical cases like Lawrence v. Texas (which overturned Texas state sodomy laws, made same-gender activities legal across the U.S., and made punishments against it unconstitutional) or Obergefell v. Hodges, in the list of safe precedents.

In his Twitter thread, Stern mentions that Alito’s draft opinion explicitly criticizes both cases similarly to abortion, saying, “None of these rights has any claim to being deeply rooted in history.”

While it’s challenging to say what the future holds right now, overturning Roe v. Wade may very well create a dangerous precedent that will continue causing harm across a number of communities in the country.

Stay vigilant, and keep with OFM for more updates as they develop.