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Draft abortion opinion spurs speculation about future of same-sex marriage

Abortion rights advocates and antiabortion advocates demonstrate outside the Supreme Court on May 3, 2022, after a leak of a draft opinion to overturn the national right to an abortion.

A leaked draft opinion suggesting that the Supreme Court will eradicate the national right to abortion has set off a wave of conjecture that the justices could also roll back the right to same-sex marriage, erasing decades of activism by the LGBTQ community.

The speculation was prompted by Justice Samuel A. Alito Jr.’s narrow interpretation of what constitutes a fundamental right and his repeated references to the idea that any right not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” to be recognized.

The court’s apparent willingness to overturn high-profile precedents startled Jason Craig, 27, who had already worried that the conservative-majority court could strike down his right to marry a partner of the same sex. But he said the leak of the draft opinion in the pending Mississippi abortion case makes his concerns feel more prescient.

“It’s different when it’s a concept and just an anxiety, because there’s room for doubt,” said Craig, who lives in Phoenix. “But once you see it in writing, it really just hits reality.”

Legal experts are divided on whether the right to same-sex marriage is actually in danger. Some say the draft opinion in the abortion case provides a road map for the court to hold that same-sex marriage is not a fundamental right, while others argue that there is no public appetite for putting that issue before the court. They also point out that Alito, who was appointed by President George W. Bush, explicitly stated in the draft opinion that his reasoning was not meant to apply to any rights besides abortion.

“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

A leaked draft opinion on May 2 shows that the Supreme Court is poised to overturn federal abortion protections. Here's what would happen. (Video: Joshua Carroll/The Washington Post)

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Some legal experts doubt the court will stay true to that position.

Jordan Woods, faculty director of the LGBTQ Law & Policy Program at the University of Arkansas, said Alito’s logic in the draft opinion largely mirrors his dissent in Obergefell v. Hodges, which established the right to same-sex marriage in 2015. In both documents, Woods said, Alito mentioned the lack of an explicit reference to the right in the Constitution, the idea that voters should decide, the lack of historical recognition of the right and the problems purportedly caused by the court recognizing the right.

As a result, Woods said, advocates who oppose same-sex marriage could use Alito’s logic as guidance for new lawsuits attempting to overturn Obergefell. Woods said he was also unnerved by Alito’s comment that appeals to people’s right to autonomy could lead to a slippery slope in which prostitution and illicit drug use are protected. The dissenting justices in the 2003 opinion that struck down a ban on consensual sex between adults of the same sex relied on a similar argument, he said.

“Ultimately, what the court will do, nobody knows,” Woods said. But Alito’s “draft absolutely provides a blueprint for the court essentially eroding or even overturning important constitutional precedents that are in this area of privacy that clearly this draft opinion is hostile towards.”

Other legal experts see the destruction of the right to same-sex marriage as unlikely.

Katie Eyer, a professor at Rutgers University with expertise in anti-discrimination law, said Alito’s draft opinion relies on a narrow interpretation of what constitutes a fundamental right — the same question at issue in Obergefell. The draft opinion also suggested a willingness to reconsider established precedent, she added.

But Eyer said public opinion in the United States is so strongly in favor of same-sex marriage — 61 percent, as of 2019 — that she doubts the court has an appetite for revisiting the issue. The Supreme Court has also taken a narrow approach to the concept of fundamental rights in previous cases without eliminating other rights.

“The individual plaintiffs in these cases lose, and then the court doesn’t go anywhere with it,” Eyer said. “It doesn’t end up overturning other opinions.”

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Alito’s statements in the draft opinion that the ruling applies only to abortion is another reason to think the court is not necessarily interested in repealing the right to same-sex marriage, said Douglas NeJaime, a professor at Yale Law School with expertise in sexuality and constitutional law. Alito differentiated between Roe v. Wade, the 1973 case that established a right to abortion nationwide, and cases involving same-sex marriage, contraception and sexual relations, saying abortion is “fundamentally different” because it destroys “fetal life.”

The nation’s courts also have not experienced the same kinds of attempts to repeal the right to same-sex marriage as it has with abortion, NeJaime said. Still, he cautioned that the court could overturn Obergefell if a relevant case were put before it.

“I think the draft opinion is actually trying to say Obergefell is not a target,” NeJaime said. “And I don’t know that that’s true, but it’s at least saying that.”

In considering whether to repeal the national right to same-sex marriage, the Supreme Court would also take into account that more than 500,000 couples in the United States rely on it, said Clifford Rosky, a law professor at the University of Utah with an expertise in LGBTQ and constitutional law. Rolling back that right would unleash a torrent of custody cases, divorce proceedings and property disputes — a result that Rosky said the court might view as prohibitively disruptive.

The court’s conservative justices are more likely to be persuaded by an argument that people rely on the right to same-sex marriage than they are on a contention that people rely on abortion, Rosky added. He also pointed to Alito’s comments in the draft opinion — joined by four other Republican-appointed justices — that abortion is different from other rights.

“But,” Rosky said, “they haven’t told us whether that distinction will determine whether they’re going to continue to protect the other rights that are not mentioned in the Constitution.”

The draft opinion from Alito is not in effect, and the court’s final opinion could differ considerably. That fact injects more uncertainty into attempts to divine Obergefell’s future, Rosky said. No one can be certain how the justices would approach a same-sex marriage case until one is put before them.