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Marital Rights of Same-Sex Couples at Risk of Removal

June 17th, 2022

The Civil Rights Act encompasses discrimination against LGBTQ workers, the Supreme Court has held.
Because same-sex marital rights also arise from the same 14th amendment protections cited in Roe, LGBTQ+ individuals are worried.

The United States Supreme Court is poised to overturn the constitutional right associated with abortion, which arises from the 14th Amendment. Because same-sex marital rights also arise from the 14th amendment, LGBTQ+ individuals are now worried that their own rights are at risk. Advocates for LGBTQ rights are concerned that if Roe v. Wade is overturned, the decision may eventually lead to the repeal of marriage equality, among many other rights.

Marital Rights and the Due Process Clause

The right to abortion as well as same-sex marital rights arise from the 14th Amendment, which states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The pertinent portions of the amendment are the due process clause and the equal protection clause, which have been used to expand civil rights for decades, including in the Brown v. Board of Education decision outlawing racial segregation in public schools.

Marital Rights Before A New Supreme Court

What is worrisome to supporters of the same-sex right to marriage is how the Supreme Court has changed substantially over the last seven years since the Obergefell case granting marriage equality was decided. In 2015, the Supreme Court voted 5-4 to grant the right to same-sex couples to marry. While Chief Justice Roberts was a notable dissenter as well as Justices Alito, Scalia, and Thomas, the Justices who supported the decisions were Breyer, Ginsburg, Kagan, Kennedy, and Sotomayor. However, the swing vote Kennedy, a conservative who generally supported LGBTQ rights and a women’s right to choose, has since been replaced by the more conservative Brett Kavanaugh. Just as importantly, the liberal firebrand Justice Ginsburg has been replaced by the conservative Amy Coney Barrett, who has a history of being hostile to LGBTQ rights.

The Basis for Concern

The dissent authored by Chief Justice Roberts in Roe is unclear, but the five other conservative justices are ready to abolish abortion rights as revealed by a leaked version of the majority opinion. The justices who make up the majority opinion include Justices Alito, Coney Barrett, Gorsuch, Kavanaugh, and Thomas. In the majority opinion, as authored by Justice Alito, he “argued that Roe v. Wade should be overturned because the Constitution ‘makes no reference to abortion, and no such right is implicitly protected by any constitutional amendment, including the one on which defenders of Roe … now chiefly rely — the Due Process Clause of the Fourteenth Amendment.’ “

This broad language used to overturn a 50 year precedent such as Roe v. Wade could easily be used to justify overturning any number of other Supreme Court opinions involving rights not explicitly mentioned in the Constitution, especially opinions much more recent than Roe v. Wade, such as Obergefell v. Hodges, which guaranteed marital rights. Indeed, other Supreme Court decisions that rely on substantive due process include the right to contraception, as laid out in Griswold v. Connecticut, and the right to marry someone of a different race, as laid out in Loving v. Virginia. Neither of these rights is explicitly mentioned in the Constitution.

Rights Must be “Deeply Rooted” in History

Alito claimed substantive due process rights must be “deeply rooted” in U.S. history and tradition and essential to the nation’s “scheme of ordered liberty,” but it is easy to see how any numbers of rights we take for granted may not be viewed as “deeply rooted” in history, including the right to consensual sexual relations among adults of the same gender, which was not established until 2003. Indeed, the 2003 Supreme Court decision in Lawrence vs. Texas, which invalidated sodomy laws by relying on the 14th Amendment, could be at risk of being overturned based on Alito’s reasoning.

It is also worth asking whose history and traditions Alito is relying upon? For most of U.S. history, women did not have the right to vote, nor did black people have any rights that white people were legally obligated to respect. Perhaps Alito is relying upon his conservative Catholic beliefs in deciding which rights should be respected and which rights come under the chopping block. Indeed, the current court consists of 6 Catholics, only one of whom is a liberal. The Catholic hierarchy has been notoriously slow at recognizing the rights and humanity of women and LGBTQ+ people, among many other groups.

Additionally, there actually is a long history of abortion in the United States, dating back to the founding of the country. From the colonial days to the mid-1800s, abortion was allowed under common law until around 4 months of pregnancy. After the Civil War, a coalition of male doctors and the Catholic Church worked to ban abortion in order to control women’s bodies.

Complex Situations Created by States’ Rights

When the court does roll back abortion rights, the decision to allow or disallow the procedure will be left to the will of each individual state’s legislature. Similarly, if same-sex marital rights are next to come under the chopping block, the ability for LGBTQ+ individuals to obtain a marriage license will depend on the state they are in. This may cause problems if a person lives in a state where same-sex marriage is legal and moves to another state where same-sex marriage is not legal. Even traveling through a state that does not recognize same-sex marriage might cause problems if that state refuses to recognize the couples’ rights.  

LGBTQ+ advocates also worry the court’s definition of life as beginning at conception may imperil other forms of healthcare including access to contraception and assisted reproduction including in vitro fertilization.

The Future of Roe and Upcoming Supreme Court Cases

A final opinion by the United States Supreme Court will be issued this month or early next month addressing whether Roe should be overturned, in the current case of Dobbs v. Jackson’s Women’s Health. No current case is directly before the Supreme Court questioning the relationship between the 14th Amendment and same-sex marital rights, but there is no doubt opponents of these rights will have the LGBTQ community in their crosshairs in the near future.

According to Jon Davidson at the ACLU, the more immediate threat is to non-discrimination protections for LGBTQ couples on the grounds of religious liberty. In the upcoming case of 303 Creative v. Elenis, the Court will decide whether a website designer can refuse service to same-sex couples due to her religious beliefs. Four years ago, in the Masterpiece Cakeshop decision, the court ruled a baker who opposed same-sex marriage was entitled to refuse service to same-sex couples based his religious liberty.

The Goal of the Universal Life Church

The 2015 decision of Obergefell v. Hodges was viewed as a landmark advancement in same-sex rights by LGBTQ+ supporters, but there have also been various setbacks in same-sex rights over the last decade. Each year the Universal Life Church’s blog focuses on documenting the most noteworthy cases in a way that examines opposing rights and in a way that objectively examines both opposing sides.

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