Part Two of a 2-part explainer on what SCOTUS might do after overturning Roe v. Wade.
Same sex marriage and other rights may soon come under the SCOTUS axe. Pouria Afkhami / Wikimedia Commons C.C. Share-Alike 4.0 License
Writing for the majority in the Dobbs v. Jackson Women’s Health Organization decision, which Vice-President and former California senator Kamala Harris called “the first time in the history of our nation that a constitutional right has been taken away from the people of America,” Justice Samuel Alito promised that a series of cases protecting other rights would not be affected. In those cases, the Supreme Court had used the same line of reasoning as Roe.
The original Roe decision relied on a right of privacy, which the court said was found in the 14th Amendment’s due process clause under the doctrine of “substantive due process”—the theory that “due process” protects the substance of certain rights as well as the procedural steps by which those rights are protected. Substantive due process is explained in greater detail in Part One of this series, linked in the right-hand column of this page.
Alito’s promise rang hollow, however, in light of a concurring opinion by the court’s longest-serving justice, Clarence Thomas, who wrote that while he agrees that Dobbs does not overrule earlier cases affirming basic rights, the court must “reconsider” those cases—because not only does “substantive due process” fail to support a right to abortion, “the Due Process Clause does not secure any substantive rights.”
Here are some of the rights that now appear to be under threat, and what they mean for Californians.
The Right to Marriage for Couples of the Same Sex
In his concurring Dobbs opinion, in which he repeatedly cited his own previous writings to support his arguments, Thomas declares that “all of this Court’s substantive due process precedents” are “demonstrably erroneous” and should be overruled. He singles out three cases in particular. The most recent and arguably the highest-profile of those is the 2015 decision in Obergefell vs. Hodges.
In Obergefell, the court ruled that the 14th Amendment’s Due Process and Equal Protection clauses, taken together, guarantee that couples of the same sex may not be deprived of the right to get married. New York University Constitutional Law Professor Kenji Yoshino called it “even more than a landmark civil rights decision. It became a game changer for substantive due process jurisprudence.”
Thomas now says that the right to same sex marriage should be revoked, because it is based on the notion that there is such a thing as “substantive due process.”
If the Supreme Court overturned Obergefell, that could be very bad news for every same-sex couple in California. The state’s history with the marriage equality issue is not a universally proud one. In the March 2000 election, California voters overwhelmingly approved Proposition 22—aka the Knight Initiative, named for its author Republican State Sen. William “Pete” Knight.
A change to state law rather than to the state constitution, Prop 22 added a “provision to the Family Code providing that only marriage between a man and a woman is valid or recognized in California.”
Eight years later, the state Supreme Court tossed the law, ruling that bans on same-sex marriage violated the rights of same-sex couples to equal protection under the law, as guaranteed by the California constitution. The ruling made California only the second state to legalize same-sex marriages.
Voters Pass Prop 8, Banning Same Sex Marriage
It took only another six months before—in the same election that made Barack Obama the country’s first Black president—California voters passed Proposition 8, altering the state constitution to specify that “only marriage between a man and a woman is valid or recognized in California.” The proposition passed 52 percent to 48.
After another six months, the state Supreme Court took up a case challenging Prop 8—and upheld the new law. But the court made clear that it was not ruling on the legal merits of same-sex marriage, but instead on the narrow, somewhat technical issue of whether Prop 8 was a “revision” to the state constitution, or merely an “amendment.”
Prop 8 Could Once Again Ban Same-Sex Marriage
If it were a “revision,” the court said, Prop 8 would have made a “fundamental change” to the constitution, which would have required approval by supermajorities in the state legislature before going to voters. The court, by a 6-1 vote, held that the same-sex marriage ban was an “amendment,” which required only voter approval.
The court decided that only changes to the structure of state government could be considered “revisions.” But according to an analysis by the Harvard Law Review, the court “should have held that fundamental changes to individual rights for minority groups are per se revisions. In doing so, the court would have required a deliberative process for such constitutional alterations, better serving a conception of courts as the protectors of minority rights.”
In any case, the state court chose not to do so. When the law went to the federal courts, in the case Hollingsworth v. Perry, the Ninth Circuit ruled that Prop 8 violated the U.S. Constitution, once again legalizing same-sex marriage in California.
The case then went to the U.S. Supreme Court—which declined to hear the case. Due to the refusal of two governors, Arnold Schwarznegger and his successor Jerry Brown, to defend Prop 8, the defense was taken up by the organization Protect Marriage. In 2013 the Supreme Court by a 5-4 vote ruled that the group had no “standing” to defend the law, allowing the Ninth Circuit’s ruling to remain in effect—and setting the stage for the Obergefell decision two years later.
If Clarence Thomas gets his way and the court overrules its own Obergefell decision, will Prop 8 go back into effect, banning same-sex marriage in the state all over again?
“These basic fundamentals that we thought were litigated. This definitely opens the door, without question,” said Assemblymember Evan Low, chair of the legislature’s LGBT Caucus, in an interview with the Sacramento Bee.
And writing in the San Francisco Chronicle, U.C. Berkeley Law School Dean Erwin Chemerinsky said that “same sex marriage would likely be immediately outlawed by the state Constitution. ... If the Supreme Court overrules Obergefell, then the California Constitution’s prohibition of same-sex marriage would go back into effect.”
Do Adults Have a Right to Use Birth Control?
In 1872, a former Civil War infantryman named Anthony Comstock arrived in Washington armed with the draft of a law he had written himself—a law aimed at crushing “obscenity” in America’s cities. While living in New York City, Comstock was appalled by what he saw as a city overrun with prostitution and pornography. To him, advertisements for birth control products were nothing more than another type of porn. In fact, contraception itself was the cause of all of this filth, Comstock was convinced.
Within a year, he had persuaded Congress to pass the law that became known as the Comstock Act, prohibiting “obscene” material from being distributed across state lines, or by the U.S. mail. Any type of contraceptive was classified as “obscenity” under the law.
By 1926, when contraception pioneer Mary Dennett published her landmark book Birth Control Laws: Shall We Keep Them, Change Them, or Abolish Them, 23 of the then-48 states had laws on the books that outlawed publishing or advertising information about contraceptives. California was one of those states. California, along with 21 other states, at that time also prohibited drugs or devices designed to prevent conception.
Griswold v. Connecticut: SCOTUS Establishes Right to Contraception
The state of Connecticut was one of the first to ban contraception, passing its own law in 1879, just six years after the federal Comstock Act. The law remained on the books as late as 1965, when the Supreme Court ruled in the case Griswold v. Connecticut. Estelle Griswold was the top official at Planned Parenthood in Connecticut. Along with Yale Medical School gynecologist C. Lee Buxton, she opened a birth control clinic in New Haven—and was soon arrested.
When the case reached SCOTUS, seven justices voted to throw out Connecticut’s 86-year-old anti-contraception law. Their reasoning: the Constitution protected the right to privacy, meaning that married adults who chose to use contraceptives in their private, personal relationships had the right to do so.
The majority wrote that the privacy right, though not mentioned in the text of the Constititution, was found in the “penumbra” of the First, Third, Fourth, and Ninth Amendments. Two justices, in concurring opinions, said that the Due Process Clause of the 14th Amendment contained the right to privacy.
California waited until 1965 to pass a resolution proposed by Santa Barbara Democratic state Senator Alvin Weingand, which made contraceptives available to adults who were at least 21 years old. The legal age dropped to 18 in 1972.
In his concurring opinion to the Dobbs decision, Thomas said that Griswold must be “reconsidered” by the Supreme Court, because as a “substantive due process” case, it was decided in “demonstrably erroneous” fashion.
‘Sodomy,’ The Final Frontier
The third decision that Thomas said he believes the court should overturn came in the case Lawrence v. Texas. The case started when police in Houston, Texas, responding to an unrelated complaint, busted into the home of a man named John Lawrence, catching him engaged in a sexual act with another man. Both men were adults, and there was no question that they both engaged in the act consensually, and it was taking place in the privacy of Lawrence’s home, not creating any kind of public disturbance.
Lawrence and his partner were immediately arrested and charged with violating a Texas statute prohibiting sexual acts between members of the same gender.
This wasn’t the first time the Supreme Court heard a case about whether consenting adults have a right to engage in “homosexual conduct,” which state laws generally referred to as “sodomy.” In 1986, the court ruled in a Georgia case, Bowers v. Hardwick, that the Constitution offered no protection for acts of “sodomy.” Hardwick and another man had been seen by police engaging in consensual oral sex, inside Hardwick’s private home. The penalty under Georgia law for this behavior was between one and 20 years in prison.
When the Supreme Court got the case in 1986, a five-justice majority decided that Hardwick was out of luck because engaging in “sodomy” is not a “fundamental right” that is “implicit in the concept of ordered liberty.” Therefore, the court ruled, the 14th Amendment’s Due Process clause does not protect it, and states are allowed to pass laws against the practice.
SCOTUS Finally Recognizes Right to Intimate Acts
But 17 years later—a time when only four states still enforced sodomy laws against consenting adults—the court took a very different view, a view that has apparently irritated Thomas ever since. He was one of three dissenters in Lawrence. The majority, however, ruled that the 14th Amendment gave Lawrence and his partner “the full right to engage in their conduct without intervention of the government.”
Justice Anthony Kennedy wrote, in the majority opinion, that Texas had no “legitimate state interest” that could justify interfering in the private sexual conduct of two consenting adults. Kennedy and the majority said that the 14th Amendment’s Due Process Clause did indeed protect the liberty to make personal decisions involving intimate acts.
What would it mean for California if Thomas got his wish, and the current SCOTUS reversed Lawrence, sending the country back to the days of Bowers and earlier when homosexual acts could be outlawed? Probably nothing. California repealed its law against consensual, adult sodomy in 1975. But a Supreme Court decision overturning Lawrence would open the door for states to enforce sodomy laws that still remain on the books, or passing new ones.
Following the publication of Thomas’s Dobbs concurrence, Texas Attorney General Ken Paxton said that he would enforce the Texas sodomy law that was never actually repealed after the Lawrence decision.
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