Three of the nation’s leading civil rights attorneys — the lawyers who secured an end to sodomy laws and same-sex marriage bans — recognized the language in Justice Samuel Alito’s leaked opinion that could overturn Roe v. Wade. His argument, even specific language, echoed his words in his dissenting opinions in the landmark LGBTQ rights cases they won.
Mary Bonauto, who convinced the Supreme court in Obergefell v. Hodges that bans on same-sex couples’ marriages were unconstitutional; Roberta Kaplan who successfully argued United States v. Windsor for the court to strike down the federal ban on recognizing same-sex couples’ marriages in the Defense of Marriage Act; and Paul Smith, who got the Supreme Court to grant same-sex couples the right to intimacy in Lawrence v. Texas, all say the argument Alito used to strike down Roe could apply to their cases as well.
“The very same arguments that [Alito] makes in the draft, he made in his dissents in Windsor and Obergefell, almost exactly the same language,” Kaplan, partner at Kaplan Hecker & Fink LLP, told Grid — a sign that those decisions, too, could face challenges in the future.
“I don’t have a lot of optimism right now, not only in respect to this issue, but in respect to many, many others,” Kaplan said, noting that she would tell same-sex couples “to get married right away. If you’re ready, of course.”
All three lawyers expressed a lack of surprise about the draft opinion from Alito in terms of its conclusion at overturning Roe. They believed the decisions in the cases they argued could stand even if Alito’s draft becomes the final decision, but they expect overturning Roe to prompt challenges to the cases they argued, at the very least.
Abortion rights supporters have been preparing for the overturning of Roe v. Wade, but the draft decision would be “a stunning, radical change,” Kaplan said, that would upend nearly a half-century of precedent set by the Supreme Court and “the status of women in the United States.”
While Alito argued in his draft opinion that the decision applies only to abortion, the key lawyers who secured rights for LGBTQ people in the United States don’t see a lot to stop the court from turning to more recent precedents next if a majority of the court wants to do so.
“What this opinion clearly signals is that there’s an interest in disturbing and unsettling precedents,” Bonauto told Grid. “So the law can be unsettled.”
The draft opinion overturning Roe sounds eerily familiar
In the draft opinion from Alito in Dobbs v. Jackson Women’s Health Organization, he writes: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history.”
When dissenting in Windsor, Alito wrote: “It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition.”
“It reads — while it was talking about abortion — it reads like some of the dissents in Obergefell and Windsor. And Lawrence, for that matter,” Bonauto, the civil rights project director at GLBTQ Legal Advocates and Defenders, noted. “So, it’s familiar — but to see it actually being done is another situation.”
Alito’s draft decision addresses “substantive due process” — an argument that the due process clause of the 14th Amendment provides substantive protection for liberty interests — by focusing on the underlying historical support for the right being claimed. Conservatives on the court have sought to limit the expansion of fundamental rights recognized under substantive due process, which Alito calls “controversial” in the draft.
It’s about “basic liberty,” Bonauto countered, noting that the sort of fundamental rights found by the court to be protected under substantive due process include “the right to marry, establish a home and raise children,” the right to “procreate … or not to procreate,” and “parental rights.”
In a 1997 case upholding Washington state’s ban on assisted suicide, then-Chief Justice William Rehnquist explained that the court would limit recognition of new fundamental rights by requiring that a claimed right be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Alito’s focus on history is at the forefront of his draft opinion, with his conclusion that abortion does not have these historical roots and, therefore, is not recognized under substantive due process as a fundamental right.
“Essentially, what it says is we don’t like this form of substantive due process, we think that substantive due process has to be more firmly rooted in history and that these rights didn’t exist in history and so they don’t exist now,” explained Smith, who argued John Geddes Lawrence Jr. and Tyron Gardner’s case against Texas’s Homosexual Conduct Law at the Supreme Court.
Questioning precedent could unleash constitutional chaos
All three lawyers expect challenges to follow a decision overturning Roe — and they have varying levels of comfort with whether they expect those challenges to succeed.
If the Alito opinion becomes the court’s final decision, Smith, senior vice president at Campaign Legal Center, said, “there will be people who will take that and say, ‘OK, now we have a green light to discriminate, again, on marriage equality and the like.’ And so, there might be a state that decides they’re going to stop marrying people. That’s what you need to create the test case. And that could happen. It may not happen, but it certainly could happen.”
Kaplan said, “There’s no question — and we’re already seeing it — that there will be parties who challenge every other right that has been conferred in Supreme Court case law under the substantive due process component of the due process clause.”
Bonauto added that “because the court is very aggressively applying this one form of how you ascertain what is a fundamental right, this very narrow and restrictive ‘history and tradition’ test, for fundamental rights, of course it causes concern” for the future of other rights.
The trio of lawyers pointed to a handful of overlapping issues that could affect whether those challenges succeed — including public opinion, the court’s interest (or not) in backtracking on LGBTQ rights in particular, potential distinctions that could be drawn by advocates or perceived by the justices that would distinguish abortion from LGBTQ rights, and other decisions of the court.
They also noted that the Dobbs ruling will come as challenges to the wave of recently enacted anti-LGBTQ state laws, particularly anti-trans laws, continue forward in lower courts — including some lawsuits being advanced by Bonauto’s GLAD and by Kaplan’s firm.
Marriage equality doesn’t seem like it’s under threat — but that doesn’t mean it isn’t
While all three lawyers had reasons why the court wouldn’t be likely to end marriage equality, ultimately all three also gave a version of, “but that doesn’t mean that they wouldn’t do it,” as Kaplan put it.
“The only person who can answer that question is someone who somehow is in possession of an accurate crystal ball,” Kaplan said. “Analytically, we know where Alito is. Analytically, if he were being consistent, he would apply the same principle he applies to Roe to marriage equality — because he says he would.”
Nonetheless, she noted how society and public opinion have moved on the issues in the past 25 years, saying that “our society has developed a common, we all thought it was, a common understanding that LGBT people were entitled to be regarded as having equal dignity and thus protection under constitutional and statutory law.” None of the Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were on the court for any of the three constitutional decisions in Lawrence, Windsor or Obergefell, bringing a younger generation of justices to the court — and Gorsuch already authored one key opinion backing LGBTQ equality since joining the court.
Detailing some conservatives’ opposition to the 1965 decision in Griswold v. Connecticut, a pivotal case using substantive due process to strike down that state’s ban on contraceptives as a violation of married couples’ right to privacy, Smith said, “I think if you ask them: ‘Is the reasoning of Griswold, Lawrence and Obergefell relying on due process, is that correct?’ They would say, ‘No.’”
There is, however, another way of protecting same-sex couples’ marriage rights, Smith said — even if the court would want to continue backtracking on its recognition of substantive due process rights: “You can get to the same results in cases like Obergefell relying on the equal protection clause, which doesn’t have that same requirement of being historically rooted.”
The decision could stand not as a type of “liberty” protected by substantive due process, in other words, but instead because same-sex marriage bans discriminate, which violates the constitutional guarantee of equal protection of the laws.
Bonauto echoed that, noting that “as much as marriage is a fundamental right, and as much as I thought it was extremely important to win [Obergefell] on those grounds, it was also extremely important to win on equality grounds because it really is a discrimination issue here” in the marriage cases.
The Supreme Court did recently affirm LGBTQ rights on the basis of equality
All three lawyers pointed to Gorsuch’s 2020 opinion for the court in Bostock v. Clayton County for further evidence the court could lack the desire to revisit other recent LGBTQ cases — or would support upholding them on anti-discrimination grounds. Chief Justice John Roberts and the then-four Democratic appointees joined Gorsuch’s 6-3 opinion for the court holding that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 banned discrimination in the workplace on the basis of sexual orientation or gender identity.
As Bonauto explained it, the Bostock decision “really cement[ed] the sex discrimination perspective when it comes to discrimination against gay and trans people.” Smith said that the reasoning of Bostock — interpreting a statute — would apply similarly to a constitutional claim under the equal protection clause, that alternative reason for upholding the Obergefell decision.
“I would hope … there will be enough justices to find a way to get to the outcome that you can’t discriminate against LGBT people in marriage rights and the like, even if they do it on a different constitutional basis,” Smith said. “I think it would be kind of hard for Roberts and Gorsuch not to do that, after what they said in Bostock.”
But, he said, it would take a case, and “then we’ll find out whether or not there are five votes to reach the Obergefell result, even if not the Obergefell reasoning.”
Thanks to Lillian Barkley for copy editing this article.