Photo: Getty Images/Saul Loeb
When the U.S. Supreme Court overturned Roe v. Wade last week, eliminating a constitutional right to abortion after nearly 50 years, the justices also fueled speculation that other established rights could be next on the chopping block.
“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Justice Clarence Thomas wrote in his concurring opinion in the Roe decision.
Thomas was aiming at three precedents that hinge on the concept of a constitutional right to privacy, as well as the due process and equal protection provisions in the 14th Amendment.
The 1965 ruling in Griswold v. Connecticut established a married couple’s right to use contraception. Lawrence v. Texas made state laws against sodomy, used to target LGBTQ people, unconstitutional in 2003. Obergefell v. Hodges made same-sex marriage a constitutional right in 2015, as a wave of states legalizing it led to a backlash of states banning it through amendments to state constitutions.
North Carolina was the last state to pass such a ban by statewide referendum. Amendment One, which was approved by a margin of 61% to 39% in a 2012 primary election that featured a turnout of just 35%, was found unconstitutional in 2014 after Gov. Roy Cooper — then the state’s Attorney General — declined to defend it in federal court.
Now, as the Supreme Court’s conservative majority has signaled its willingness to reverse long-established precedents on politically volatile issues, LGBTQ North Carolinians, advocates and legal experts say the state could be headed back to a period in which LGBTQ people are second-class citizens.
“Nobody has any experience with this,” said Maxine Eichner, a professor at UNC-Chapel Hill’s School of Law whose work focuses on the intersection of the law and family relationships.
Eichner said no previous Supreme Court ruling has curtailed established constitutional rights in this way, which could signal more rollbacks are to come.
“I’ve been talking to a lot of experts and everybody is scrambling,” Eichner said. “Figuring out the state of the law is not an easy process. The law on the ground is in complete chaos right now.”
Though Justice Samuel Alito in the majority opinion, took pains to say the court’s decision in Dobbs v. Women’s Health Organization should not “cast doubt on precedents that do not concern abortion,” Eichner said the legal reasoning in the opinion raises questions about the sanctity of those precedents.
“The reasoning of this decision, looking back to see what was protected either at the time of the constitution or the 14th Amendment’s passage, what was accepted in terms of what the Constitution covers … we can of course be clear that the Constitution neither covered the rights of same sex persons to engage in sexual activity if you think about the Lawrence opinion or same sex marriage, Obergefell,” Eichner said.
“Under Justice Alito and the majority’s rationale, protections for same-sex relationships fall away,” Eichner said.
Should that happen, legal experts say, North Carolina could quickly revert to being one of many states where LGBTQ people have few if any legal protections.
“It isn’t just marriage equality,” said Holning Lau, a professor at UNC-Chapel Hill’s School of Law who teaches courses on human rights, family law and comparative constitutional law. “We have a sodomy law that is still on the books in this state that is unenforceable because of Lawrence. But if that’s overturned, it’s still there.”
Protections for LGBTQ people are much more recent than protections for abortion, Lau said. The more than 560,000 same-sex couples married in this country since the Obergefell decision have lived in a world wherein their marriages are constitutionally protected, wherever they live in the nation. But should the Supreme Court follow the legal reasoning it recently used in Dobbs, that could change.
“We would return to an era where the United States is a patchwork of laws and protections,” Lau said. “It would create a host of vulnerabilities for LGBTQ people, we would return to that state of vulnerability.”
“A huge, looming question mark”
This month Gallup found 71% of Americans in its most recent polling support same-sex marriage, a record high.
But near record public support for abortion rights did not slow a new conservative majority on the Court from overturning Roe when the opportunity arose.
Thomas’s comments targeting LGBTQ-related precedents must be seen as part of a larger picture, said Kendra Johnson, executive director of LGBTQ advocacy group Equality NC.
Even as public opinion polling consistently shows support for LGBTQ rights on the rise, a conservative backlash has led to an unprecedented number of bills in state legislatures — including North Carolina’s — targeting LGBTQ people and framing them as a threat to children.
Lt. Gov. Mark Robinson, the state’s top elected Republican, has been open in his disdain for LGBTQ people and their relationships, saying in public speeches that the country is in the midst of a moral war and debates over LGBTQ rights are “the tool of the devil to continue to divide us and lead us into immorality.”
Those sentiments are no longer on the fringe in the state GOP, where they are applauded at state conventions.
“We’re just in a place right now in the United States where all of our rights are in jeopardy and our personal freedoms are under a huge looming question mark,” Johnson said. “We can’t just talk about the legal implications of Roe in a vacuum. We have to talk about what we’re seeing in the states, where personal freedoms and liberty are under attack everywhere — in the classroom with who can be represented and whose lives can be spoken about the change in how we represent who makes up this nation.”
With that in mind, Johnson said, LGBTQ families are rightfully concerned about losing rights and protections. With the demise of Roe and justices telegraphing their willingness to overturn LGBTQ-specific precedents, Johnson said families should be seeking advice, if they can, from family lawyers.
“Absolutely — folks should be getting their business in order with regard to setting up some other legal bases to protect their unions, their shared resources and their rights to children,” Johnson said. “But I think the larger issue is really tied to elections and what it means that we have a president who could have appointed these conservative justices who sit on the bench for a lifetime and are not elected officials who can regulate every single matter of our lives, our access to systems and services.”
The documented mainstreaming of right-wing extremist views such as the so-called “great replacement theory” and rise of white Christian nationalism dovetails with the new, conservative Supreme Court’s reliance on an originalist framework for constitutional issues, Johnson said.
“The originalist framework for the Constitution was that the only people who had rights in this country were white, cisgender men who were property owners,” Johnson said. “It didn’t recognize someone like me. It didn’t recognize a lot of people in this country now.”
The majority opinion in Dobbs says that a constitutional right to abortion is not rooted in the history and tradition of the country. The same can certainly be said for most LGBTQ precedents, Lau said — but there are other, strong legal arguments for those rights.
“In my family law course, I teach substantive due process — there were cases that preceded Roe and came after Roe that are all built on the same logic, that we have the right to make decisions about our private lives, family and sex,” Lau said. “Decisions about contraception, marriage, sexual intimacy — all of these are tied together with the same constitutional thread. Now that that thread is broken, the logic is such that much more can unravel.”
But such a scenario is not inevitable, he said.
“Alarmed but not panicked”
Lau said the shock waves of the Dobbs decision reverberating through legal circles has a lot to do with its tortured logic, selective reasoning and the arguments over how the case can be seen as a prime example of the politicization of the court.
But for the average LGBTQ family in North Carolina, panic may be premature.
“I think people who are concerned and who want to consult with family lawyers may be right to do so,” Lau said. “But I think we should be alarmed by this decision but not panicked.”
First, Lau said, any case challenging Griswold, Lawrence or Obergefell is likely to take a significant amount of time to make its way to the Supreme Court. While the Court’s majority has argued abortion is different because it involves a fetal life, Lau said that provides little comfort: The actual legal reasoning doesn’t actually rest with how it is different.
“I think Thomas’s concurrence is the most intellectually honest,” Lau said, in that it acknowledges that the legal reasoning in Dobbs threatens other precedents and even points to specific examples.
But the 14th Amendment equal protection argument for marriage equality is still a strong one, Lau said, as is the argument that hundreds of thousands of Americans have relied on the precedent of Obergefell in how they have ordered their lives and their families.
“The risk of nullifying existing marriages is extremely low,” Lau said. “Even outside the context of same-sex couples there is a lot of jurisprudence that goes against invalidating existing marriages.”
Removing constitutional protections for same-sex marriages would be very unsettling and disruptive, Lau said.
“But it doesn’t create as many unknowns as you might think,” Lau said. “Because we lived through this era of patchwork laws and it wasn’t that long ago. We remember what it was like and how we did it.”
Right now, Lau said, people should concentrate on organizing, speaking up and getting people to the polls as what state legislatures pass could soon be more vital than ever.
“If we are dealing with these things at the state level, that is going to be so important,” he said. “We can’t lose sight of that.”
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.