August 10, 2022
The legal principle that could block Clarence Thomas’ gay marriage threats
The nation is in crisis. The majority decision in Dobbs v. Jackson Women’s Health Organization is an earthquake that has devastated reproductive rights constitutionally guaranteed for nearly 50 years. The rights of all who may become pregnant are under threat, with poor people of color, undocumented immigrants and people with disabilities most in need of immediate protection and…

The nation is in crisis. The majority decision in Dobbs v. Jackson Women’s Health Organization is an earthquake that has devastated reproductive rights constitutionally guaranteed for nearly 50 years. The rights of all who may become pregnant are under threat, with poor people of color, undocumented immigrants and people with disabilities most in need of immediate protection and help. At the same time, many Americans now live in fear of what legal aftershocks may follow, including the reversal of same-sex couples’ marriage rights made precedent by the Supreme Court’s 2015 Obergefell decision.  

There no doubt will be efforts by those who feel empowered by Dobbs to try to literally prevent same-sex couples from marrying.

Those concerns are understandable. The fight for the freedom to marry in the U.S. had seemed conclusively won. But now we have Justice Clarence Thomas saying in his Roe concurring opinion that his colleagues have “a duty to ‘correct the error’ established” in precedents including Obergefell. And there no doubt will be efforts by those who feel empowered by Dobbs to try to literally prevent same-sex couples from marrying, in the hope that they will be sued and a case could make its way to this current high court.

And the reality is that, despite having won access to marriage, LGBTQ Americans have been fighting off challenges to their rights for years. Those who want a return to pre-Stonewall days never gave up. State legislators have introduced more than 300 bills this year attacking the rights of transgender and other LGBTQ people, and more than 20 anti-transgender bills have become law in the past three years. Many activists working to deprive pregnant people of control over their own bodies simultaneously have been trying to do the same to transgender people.

But as we reflect on a truly disastrous Supreme Court term, there is a glimmer of light. Because from a purely legal perspective, marriage equality should not be at risk. The court repeatedly explained in its Obergefell decision that the ruling did not rest entirely on liberty cases like Roe, saying it also independently rested on guarantees of equality. Obergefell held that the right of same-sex couples to marry “is derived, too, from that [14th] Amendment’s guarantee of the equal protection of the laws” and that laws restricting that right “abridge central precepts of equality.”  

The court noted that Loving v. Virginia, the primary case on which Obergefell relied, was grounded not only in liberty rights but also in “the central meaning of the Equal Protection Clause.” Obergefell further stated that laws excluding same-sex couples from marriage “are in essence unequal” because they deny same-sex couples all the benefits marriage affords others and because they “disrespect and subordinate them.” The court reiterated that “the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement” of the right to marry.

This should matter because Obergefell explained that — unlike the court’s liberty jurisprudence, which Dobbs held looks to history to determine what rights are constitutionally protected — equal protection analysis does not accept historical inequality as grounds for continuing it. Instead, Obergefell explained that “in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” Obergefell cited numerous cases in which laws that had long treated women and men unequally in marriage were found to violate equal protection principles, stating that “these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage.”   

A court willing to overturn 49 years of precedent regarding reproductive freedom might also be willing to overturn equal protection rulings, as well.

The problem is that a court willing to overturn 49 years of precedent regarding reproductive freedom might also be willing to overturn equal protection rulings, as well. Justice Clarence Thomas has already called for Obergefell to be revisited. And while the Dobbs majority asserted that abortion is different and that nothing in it should be understood to cast doubt on other precedents — assertions Justice Brett Kavanaugh echoed in his concurrence — those words provide little comfort given how many justices in the majority said at their confirmation hearings that Roe was settled law, only to turn around and overturn it.  

And that means the LGBTQ community and our allies must redouble our mobilization efforts now. At least Dobbs has caused many LGBTQ people to recognize how reproductive freedom is an LGBTQ issue. That is true not only for the bisexual and lesbian women, transgender men and nonbinary people who may become pregnant (sometimes against their will) and need to terminate pregnancies. The freedom to control our destinies free from unwarranted government interference is key to all LGBTQ rights.  

We must organize. We must protest. Most important, we must vote only for those who will support reproductive freedom, transgender rights, the freedom to marry, racial justice and nondiscrimination protections. We must fight gerrymandering and voter suppression efforts that allow the minority of Americans to impose their views on everyone else. We must seriously consider court reform.  

What we cannot do is give up. The Supreme Court has erred before and later corrected flawed rulings. We must do all we can to help those harmed and contain the damage until we have a court that will restore what a majority of current justices have destroyed, including our faith in the court itself. 

Jon Davidson

Jon Davidson is the chief counsel at Freedom for All Americans, a campaign dedicated to winning LGBTQ nondiscrimination protections nationwide.

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