After abortion, gay marriage? Fears US court may target other rights

Washngton (AFP) – After abortion, could gay marriage be next? With America’s Supreme Court poised to roll back half a century of abortion rights, activists fear conservatives will set their sights on other constitutional freedoms, starting with same sex unions.

Also under threat could be gay sex or access to contraception, while future rulings could impact new areas such as transgender rights, legal experts say.

“The results of this case, if this opinion is actually the final opinion, will unravel constitutional rights that generations of Americans have taken for granted,” said professor Katherine Franke of Columbia University’s Center for Gender and Sexuality Law.

“Its limits are hard to anticipate,” she added.

The Supreme Court’s draft ruling — leaked Monday — would overturn the 1973 Roe v. Wade decision that enshrined abortion rights across the country if confirmed by the court, which has until end June to decide.

Fears that other rights could next be in the crosshairs of the court’s conservative majority stem from Justice Samuel Alito’s draft majority opinion, in which he argued that the right to abortion was not protected by the constitution.

Alito wrote that in order for rights to be judicially protected, they must be “deeply rooted in this Nation’s history and tradition,” which he argued abortion was not.

The 14th amendment does not mention specific rights but has been widely referenced by courts over the years in granting certain fundamental rights, such as contraception in the 1960s and in 2015 when the-then liberal leaning Supreme Court legalized same-sex marriage.

“If anything like Alito’s opinion turns out to be the final opinion of the court, it does open the door for people who want to attack same-sex marriage or gay sex in new cases,” Arthur Leonard, an expert on equality law at New York Law School, told AFP.

– ‘Emboldened’ conservatives –

Alito, 72, stressed that he was talking about “the constitutional right to abortion and no other right,” but that doesn’t reassure legal experts like Leonard.

“I don’t believe him,” said Leonard, adding there would be a “temptation” among the conservative justices to use their 6-3 majority to undo rights that have long vexed the religious right in America.

Leonard said that if Alito applies his opinion elsewhere it is “going to endanger a lot of potential new areas” such as transgender rights.

Around half of US states have laws prohibiting gay marriage. They could be triggered again if the Supreme Court’s legalization of same-sex union is repealed. A handful still have laws prohibiting sex between same-sex partners.

Leonard thinks the Supreme Court, which shifted firmly conservative after the appointment of three members by ex-president Donald Trump, would stop short of ruling on gay sex, though.

“Public opinion has changed so sharply on that issue,” Leonard notes. “There’s a strong majority now in public opinion polls that say just keep their hands off what consenting adults do in private.

“But marriage is a very public thing. Marriage is a status that’s recognized in society and entitles you to rights, benefits, etc.”

The draft ruling on abortion has activists fearful for the future of same-sex unions, of which there are more than half a million in the United States, according to census figures released in 2019.

“We’re definitely worried,” Trevon Mayers, senior director at New York City-based LGBTQ advocacy group The Center, told AFP.

“The leaked draft of the court’s opinion suggests that conservative members are emboldened by their majority, and may also be prepared to roll back other hard-fought fundamental rights.

“Systems of power, including our courts and elected officials, need to focus on ensuring all people have access to the health care that they need, rather than the opposite,” he added.

Republicans have yet to comment publicly on whether they would welcome the Supreme Court looking at gay marriage but Democrats have indicated that threats to other rights will be a key angle of attack for them during Congressional midterms later this year.

President Joe Biden warned the Supreme Court ruling — if upheld — would reach far beyond the question of abortion, to “all the decisions related to your private life — whom you marry, whether or not you decide to conceive a child or not.”

“A whole range of rights are in question,” he said.

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© Agence France-Presse