On a sunny and windy day in Salt Lake City this week, Utah Senator Derek Kitchen warned that a possible Supreme Court ruling striking down the constitutional right to abortion could also threaten same-sex marriage.
“When one fundamental right is attacked, all fundamental rights are attacked,” Kitchen told reporters. “The fact that reproductive health care may be taken away from half of our population [means] we should all be worried about our other fundamental rights that have been won by the courts over the past decade. »
Kitchen lobbied for Utah — and other states across the United States — to codify the right to same-sex marriage into law to protect it from any effort to nullify it. Jim Obergefell, the plaintiff in the landmark 2015 Supreme Court case that gave the constitutional green light to same-sex marriage, stood beside him and supported the effort.
“We have to protect the right to marry at the state level, because we don’t know what will happen at the federal level from the Supreme Court,” said Obergefell, who is now running as a Democrat for a seat in the Ohio legislature. .
Same-sex marriage has become more widely accepted by Americans — including among Republicans and Democrats who previously opposed it — compared to about a decade ago, when it was one of the biggest fields of cultural and political battle.
Nonetheless, fears he could be suddenly in danger have erupted as the Supreme Court and its staunchly conservative majority prepare to deliver its long-awaited opinion on Mississippi’s abortion ban after 15 weeks of pregnancy.
A draft opinion by Judge Samuel Alito, which may or may not be the last, was leaked in April showing the court was prepared to overturn Roe vs Wade, the 1973 precedent guaranteeing the right to abortion, in its entirety. Because the ruling was rooted in the constitutional right to privacy and personal liberty under the 14th Amendment, some worry that other rights in the same category could also be upset.
“The right to privacy that underlies Roe is the same right to privacy that protects the right to use contraception and the right to marry the person you love, including someone of the same sex. “said Kamala Harris, US Vice President. , said this week.
“Toppling Roe opens the door to the restriction of these rights. It would be a direct attack on the fundamental right to self-determination, to live and love without government interference,” she added.
Democrats have been keen to point out the broader ramifications of a Supreme Court decision to overturn Roe v. Wade as they attempt to portray Republicans who backed and voted to uphold the conservative Supreme Court majority as an extreme forward. the November midterm elections.
Some Republicans have pushed back, arguing that any decision on abortion should be interpreted much narrower and is unlikely to lead to a new push to overturn same-sex marriage or other rights that have been established. over the last half century.
But Mitch McConnell, the top Republican in the Senate, was much more circumspect. “I have no advice for the Supreme Court. They shouldn’t take my advice,” he told NPR when asked if the court’s expected reflection on Roe could be applied to other issues. “Their job is to interpret the law as best they can.”
The legal question that would be opened up by a decision to overturn Roe vs. Wade is whether personal rights that are not explicitly mentioned in the constitution – the so-called unenumerated rights – can be protected, or whether they could be canceled at the state level.
Neither the right to abortion nor the right to marry a person of the same sex is specifically mentioned in the document.
“What really worries me is that this will further inspire advocates and conservative state lawmakers in states that have already demonstrated hostility towards LGBTQ people to start trying to pass laws, either by reducing or completely trying to undermine marriage equality. said Sarah Warbelow, legal director of the Human Rights Campaign.
However, she also notes that any spillover from the Mississippi ruling on other issues, including same-sex marriage, would take some time to work its way through the court system, and courts may take different views in different situations. For example, Obergefell’s ruling on marriage equality was also based on the 14th Amendment’s Equal Protection Clause, giving him an added shield against nullification.
“We hope so. . . Obergefell is challenged in the United States Supreme Court, [the court] will take the issue of equality seriously before demoting LGBTQ people to second-class citizenship,” said Janson Wu, executive director of Glad, which provides legal services to the LGBTQ community.