LGBT RIGHTS and abortion rights orbited separately for decades around the Constitution, never quite coming into direct contact. The Supreme Court’s Dobbs v. Jackson puts them on the same constitutional page. Although Dobbs concerns itself with abortion, the decision seriously menaces LGBT rights. The concurring opinion by Clarence Thomas explicitly calls on the court to “correct the error” in Lawrence v. Texas (protecting same-sex relationships) and Obergefell v. Hodges (recognizing same-sex marriage).
At stake is the logic that advanced LGBT rights through the courts. In Bowers v. Hardwick (1986), the court asked whether the Constitution “confers a fundamental right upon homosexuals to engage in sodomy.” In answer to a question framed that way, the court found that sodomy had no place in the Constitution or in the fundamental rights “deeply rooted in this Nation’s history and tradition.”
In Dobbs, the Roberts court uses the same tests to strip away the constitutional right to abortion. In the majority opinion, Justice Samuel Alito maintains that Dobbs concerns itself with abortion alone, but Dobbs did not just strike down Roe v. Wade, it struck down the reasoning by which abortion rights are constitutional: the idea that the right of privacy extends to abortion. By his own reckoning, Justice Thomas offers a “more fundamental” reason why Roe was defective. He argues that the due process clause of the Fourteenth Amendment requires only that states follow their rules when depriving anyone of life, liberty, and property. By itself, Thomas says, the Fourteenth Amendment confers no other rights: the very idea of “substantive due process” is a contradiction in terms.
Thus armed, the current majority on the court might well find that Lawrence and Obergefell were mistaken because rights to “sodomy” or same-sex marriage are not explicit in the Constitution, have no firm place in the nation’s history, and/or are not protected by the Fourteenth Amendment. Reconsideration of Lawrence and Obergefell would not automatically mean that the rights protected by the decisions would disappear. Those rights could possibly rely on other constitutional grounds for support. Thomas casts cold water on such prospects. He doubts the Fourteenth Amendment “protects any rights that are not enumerated in the Constitution.”
The fact that society has integrated the rights articulated in Lawrence and Obergefell does not protect them from constitutional challenge. Setting Lawrence aside would return us to the era of Bowers, allowing states to criminalize homosexuality at will. Some states still have anti-sodomy laws on their books. For example, a Kansas statute prohibits sex “between persons who are sixteen or more years of age and members of the same sex.” The federal Defense of Marriage Act also remains on the books. Such laws will come into force if Lawrence falls.
Justice Thomas is not alone in the court’s history challenging the Lawrence decision. The late Justice Antonin Scalia believed that decision was a constitutional disaster. He declared that the question of whether to criminalize sodomy or not belongs to state legislatures; it does not fall to courts to decide. He said that the authority for change of this kind belongs to the people, not to a “governing caste that knows best.” But this approach carries a danger to LGBT rights by reopening the door to moralistic uses of the law.
Over the decades, the court has strenuously debated whether the government may enact laws in the name of morality. When the Supreme Court struck down Colorado’s Amendment 2, which prohibited the state from conferring any protective status on “homosexual, lesbian, or bisexual” people, Justice Scalia objected vigorously. He defended the amendment as “designed to prevent piecemeal deterioration of the sexual morality preferred by Coloradans.” Turning constitutional rights back to the states opens the door to morality wars.
That a majority of Americans favors some right to abortion did not protect that right at the constitutional level. That a majority of Americans favors protection for same-sex relationships may not matter to a fundamentalist court either. Dobbs v. Jackson is a potential wrecking ball for LGBT rights. Those rights now need both activism and legislative protection equal to the implicit and explicit threats to be found in this fateful Supreme Court decision.
Timothy F. Murphy, PhD, is professor of philosophy in biomedical sciences at the University of Illinois College of Medicine.