How Will The Overturning Of Roe v. Wade Affect LGBT+ Rights?
25 June 2022
With Roe v Wade, the ruling that protected abortion access across the United States overturned many LGBT+ rights activists who are worried that other rulings that enhanced LGBT+ rights will be next. So will LGBT+ rights be impacted? It's complicated.
Same-sex marriage
One of the main rulings that could be in danger in the post-Roe world is Obergefell v. Hodges. Obergefell was the famous 2015 ruling that ensured marriage equality nationwide.
Justice Thomas stated in his opinion that the court should reconsider rulings like Obergefell and Lawrence. This is likely signaling that he would overturn the rulings given the chance. However, in the main majority opinion justice, Alito said that the Roe ruling should not be viewed as a threat to other rulings saying that abortion and same-sex marriage are different issues. Unfortunately, Alito never said the rulings were safe either. On top of that Alito was one of the ones to dissent from the Obergefell ruling. With a conservative court, things look shaky for Obergefell.
However, there are other factors too. First, a case against Obergefell would need to be brought to the Supreme Court, this seems somewhat likely given the current political climate. Next, the court would have to accept and hear the case, this also seems somewhat likely given the conservative court though definitely not a guarantee. Also, overturning Obergefell would be a deeply unpopular decision, even more so than Roe. Support for same-sex marriage is at an all-time high being at 71%. Unfortunately, the court has overturned popular decisions before (Roe is a big example) and support could decrease if the political situation worsens. Also, overturning Obergefell would be a bureaucratic nightmare because of all the marriage certificates that would have to be canceled. Lastly, it's possible that increased public acceptance of gay couples with good legal and moral arguments could win over justices. With the 3 liberal justices likely to vote for equality, 2 conservative justices would need to be convinced.
To recap, while Obergefell is definitely in danger it's far from certain that it will be overturned. In my opinion, the odds are around 30% to 55% by 2030. This prediction and future ones are likely off and should be taken with a grain of salt.
Same-sex intimacy
Another ruling that could be in danger is Lawrence v. Texas. This ruling stated that states could not ban same-sex intimacy. This 2003 ruling took America off the list of countries that criminalized homosexuality.
A lot of the things that applied to Obergefell also apply to Lawrence. Luckily Lawrence was around for longer, had more support in the court and is more popular.
While Lawrence could get overturned it seems unlikely right now. I currently put the chance at around 15% to 30% by 2030. Even if it was, some states that criminalized same-sex intimacy might repeal those laws because of how (hopefully) deeply unpopular they would be.
Discrimination protections
Discrimination protection likely won't be directly affected by the Roe ruling as LGBT+ discrimination issues rely on different legal areas. Also, Bostock v. Clayton which banned employment discrimination based on sexual orientation and gender identity was decided by the current court. One area that could be hurt though is religious exemption laws which allow people to discriminate based on religious reasons.
What can we do
Between attacks on transgender and gay kids and these rulings being in danger, we have a responsibility to act. A good thing our nation could do is codify protections. This could be done on a state or national level. On a state level we could push to repeal laws that ban same-sex marriage and same-sex intimacy, so even if rulings were overturned there would be a smaller effect. National changes would be even better, if rights were codified they would be much harder to take away. This will be challenging given the current political situation and the midterm outlooks but it's possible. These efforts would be helped by the high support for these issues and further advocacy work would be even better.
To recap, while it's not certain these rulings will be overturned it's possible. The community needs to fight back against attacks and prevent rights from being taken away.
https://www.cnbc.com/2022/06/24/roe-v-wade-overturned-by-supreme-court-ending-federal-abortion-rights.html
https://www.axios.com/2022/06/24/obergefell-supreme-courts-roe-wade-ruling-privacy
https://www.msn.com/en-us/news/opinion/in-abortion-opinion-thomas-urges-supreme-court-to-e2-80-98reconsider-e2-80-99-gay-rights-rulings/ar-AAYQpbx
https://www.hrc.org/press-releases/public-support-for-marriage-equality-at-all-time-hig
h-approaching-the-anniversaries-of-landmark-supreme-court-decisions-that-contributed-to-lgbtq-equality