When the Supreme Court reversed Roe v. Wade last month, it did more than disrupt access to abortion. It also reset Americans’ sense of what’s possible, fueling anxious debates about which landmark decision will be overturned next.
“What it said is that the court is willing to make sort of radical decisions that are unpopular,” said Robin Maril, a law professor at Willamette University in Salem, Oregon.
Many Americans are particularly worried about the future of same-sex marriage, since Justice Clarence Thomas criticized the 2015 Obergefell ruling in his concurring opinion in the abortion case. Although the majority specifically said marriage rights are secure, some legal experts doubt they can be taken at their word.
“The Supreme Court could say, ‘We can’t find this right in the Constitution,’ which is correct, it doesn’t exist as an enumerated right. And it is absolutely not a right that is deeply rooted in the nation’s history and tradition. So they can say, ‘Let’s throw it back to the states,’” said Kimberly Mutcherson, co-dean of Rutgers Law School, to The 19th earlier this month.
In hopes of avoiding this potential situation, Democrats in Congress have moved to codify the right to same-sex marriage in federal law. On July 19, the “Respect for Marriage Act” passed the House with 267 votes — 47 Republicans joined with Democrats — and the bill’s chances in the Senate are looking pretty good.
However, it’s still unclear whether federal policy would override states’ authority to set marriage laws. Gay rights advocates have said their work won’t be over even if the new bill makes it to President Joe Biden’s desk.
“Some things we as a society will be figuring out in the days to come,” said Jenny Pizer, law and policy director for Lambda Legal, to The 19th. “How much of the next chapter is written in Congress and how much is written through other political and other democratic means, I can’t tell you that right now.”
But after reviewing the Supreme Court’s abortion ruling and other decisions, some legal experts, including Maril, believe the justices will not take away the right to same-sex marriage. There are important distinctions between the court’s approach to abortion and its approach to LGBTQ rights, Maril said.
Did the abortion ruling put gay marriage at risk?
To understand the relationship between the abortion ruling and past court decisions on marriage, you have to understand the concept of implied — but unenumerated — rights. Legal protections that fall into this category aren’t listed by name in the Constitution, but they’re seen as part and parcel of rights that are.
“You get rights in two different ways: either the Bill of Rights says you have them or they’re implied fundamental rights that are seen as so basic and fundamental to the way we operate in America that we can’t fathom living without them,” Maril said.
In Roe v. Wade and other previous abortion decisions, the court said access to abortion, at least under some circumstances, was an implied right. But a majority of current justices disagree with that stance, which is why they voted to return control over abortion policy to individual states.
The majority opinion said abortion is not a question of individual autonomy or liberty because you have to balance the state’s interest in protecting fetal life, Maril said.
The decision showed that a right can be taken away even after it’s been presumed to be protected by the Constitution for nearly 50 years. In the wake of its release, other implied rights seem vulnerable to the same fate.
“That’s what I think caused people to really worry,” Maril said.
However, she added that the majority opinion drew clear distinctions between past rulings on abortion and past rulings on marriage. Justice Samuel Alito wrote that abortion needed to be revisited because it alone involves the taking of a “potential life.”
“Our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” he said.
In cases dealing with marriage laws, it’s much harder to make the case that same-sex marriage or interracial marriage creates a third-party harm, Maril said. Conservative state leaders may try to raise moral concerns, but, in the past, the court said that was out of bounds.
“The court has said that morality is not a legitimate state interest to justify discrimination,” she said.
What will happen next?
In part because of Alito’s assurances that same-sex marriage and other implied rights are safe, some Republican lawmakers have said efforts to pass the “Respect for Marriage Act” are a waste of everyone’s time. They may be overlooking the fact that history includes examples of the Supreme Court contradicting itself or prioritizing political interests over settled law, Maril said.
“History nerds will know that, in the civil rights cases of the 1880s,” the court was swayed by politics, not the law, she said.
It’s because of rulings like those that legal experts are never entirely sure of how a case will turn out. Maril recalled waiting for the court to rule on the Defense of Marriage Act in 2013 and feeling confident that legal precedent was on the side of the LGBTQ community but panicked at the same time.
“I felt really sure that it should be fine, but I also had no idea how they were going to rule,” she said.
A similar mix of confidence and concern is present in Maril’s mind these days as she considers the future of same-sex marriage. That’s one reason why she thinks there’s value in calling federal lawmakers to a vote.
“It shows where politicians are on the (same-sex marriage) issue,” Maril said.
That the bill will likely pass both houses of Congress with bipartisan support confirms what public opinion research has been showing for years: a growing majority of Americans support same-sex marriage legalization.
“Only 30% of Americans oppose allowing gay and lesbian couples to marry. Support has risen consistently since 2014, from 54% to 58% in 2016 and 61% in 2017 to 67% in 2020 and 68% in 2021,” Public Religion Research Institute reported earlier this year.
This trend minimizes the odds that those who support the Supreme Court’s 2015 ruling legalizing same-sex marriage nationwide are in for a future shock, Maril said. In past moments where the court seemed to disregard past precedent, public opinion on the issues involved was typically more mixed.