Samuel Alito’s Ludicrous Logic Might Endanger More Rights Than Just Abortion
Issues including gay rights and civil rights may be under conservative retroaction
Many still remember the day that same-sex marriage was legalized across the United States. On that date, July 26, 2015, after heated arguments, the Supreme Court announced its decision on Obergefell v. Hodges: under the Fourteenth Amendment to the U.S. Constitution, states cannot prevent same-sex couples from marrying and must recognize their legal right to do so.
The case, a consolidation of six cases challenging the illegality of same-sex marriage in different states at the time, was widely seen as a necessary step in destigmatizing the LGBTQ community and a huge advancement for their rights. The plaintiff in the case, Jim Obergefell, said the ruling “affirms what millions across this country already know to be true in their hearts: our love is equal.”
After the ruling was announced, there was a sea of joy outside the Supreme Court as people scrambled into the streets to celebrate this historic moment. From the Stonewall riots decades ago that saw armed police brutalizing the LGBTQ community, to the passage of the Defense of Marriage Act in 1996 that prohibited gay marriage, to 2004, when Massachusetts became the first state to recognize same-sex marriage, to 2013, when the Supreme Court overturned the Defense of Marriage Act and to that moment when same-sex marriage rights were guaranteed by law, the LGBTQ community has suffered too much to wait for this day to come.
There was a time when it was thought that this decision would make it possible for the fundamental right to marriage for the same-sex community to be guaranteed by law just like the opposite-sex community, but with Roe v. Wade on the verge of being overturned, people are no longer positive about this. In a recent interview, Jim Obergefell no longer had a hopeful face over the status of gay marriage; he is extremely worried that his case could be overturned. He was unabashedly fierce in his criticism of Justice Samuel Alito, who authored the leaked majority opinion and also voted against legalizing same-sex marriage:
“This decision, and what Alito has to say about marriage equality, is a clear call to anyone who opposes marriage equality, who opposes LGBTQ+ equality, that they have a friend on the court.”
The Obergefell Loophole
Almost every federal judge, especially conservative nominees, was asked the question “Do you agree with the Roe decision” during their confirmation hearings, and the answer is almost invariably “Roe is the law of the land.” However, with the “law of the land” prerequisite rejected by the Alito majority opinion, we must rethink how a potentially Republican Congress and an already conservative Supreme Court would deconceptualize same-sex marriage’s legality.
Justice Anthony Kennedy’s majority opinion in Obergefell and in United States v. Windsor was critical to the legalization of same-sex marriage. So did he build his cases on solid constitutional grounds in his own opinion to confirm that the same-sex community should enjoy the same treatment and rights as heterosexuals? Sadly, he did not. The arguments made in the several decisions involving same-sex marriage rights for which he wrote the majority opinion were so poor that instead of providing a basis for prohibiting discrimination based on sexual orientation, the decisions made them more vulnerable to challenge to the point of being potentially overturned.
For a long time, numerous Supreme Court decisions involving the Fourteenth Amendment have played a crucial role in guaranteeing the rights of people under the Equal Protection Clause. It was the primary legal basis for Kennedy’s decisions on same-sex rights before he entered the Supreme Court. Equal Protection holds that when particular groups are more likely to be discriminated against because of their identity, independent of their ability to contribute to society, the Constitution must give the highest standard of “strict scrutiny” for judicial cases regarding these rights. Today, race, national origin, religion, and citizenship (excluding undocumented immigrants) are identities subject to the Equal Protection Clause, but sexual orientation is not; Kennedy refused to include sexual orientation in the Equal Protection Clause in a case involving same-sex marriage, instead invoking the “unenumerated rights” clause. In other words, same-sex marriage was legalized on the basis of “unenumerated rights of the people” in the Constitution, not because banning same-sex marriage is a textbook case of identity-based discrimination.
The scope of the unenumerated rights clause is much more vague than the Equal Protection Clause. This right comes from the Ninth Amendment in the Bill of Rights, which states that the Constitution cannot be used to deny to the people other rights reserved to them. Meanwhile, the Fourteenth Amendment, which prohibits states from enacting laws that limit fundamental rights of the people that are not covered by the Constitution, also provides citizens unenumerated rights not covered in the Constitution. Roe v. Wade was able to guarantee abortion freedom because the justices found that the unenumerated rights covered personal privacy, and guaranteed women the right to govern themselves, even though the issue of abortion was not explicitly addressed in the Constitution. It is conceivable that if the conservative Justices, led by Alito, had rejected the unenumerated rights in Roe, the jurisprudential basis for the Obergefell majority, written by the now-retired Kennedy, would have been in jeopardy.
The Falling Domino
A reversal of Roe would inevitably have the effect of shaking up the entire system, and the fall of the dominoes would make conservative politicians and judges who already refuse to respect same-sex rights even more reckless. Once similar legal challenges arise, not only will same-sex marriage rights be repealed, but they will even try to overturn rulings such as Lawrence v. Texas, which explicitly required states to refrain from enacting laws restricting consensual same-sex adult sex (then known in the United States as sodomy). Because this decision, like Roe, relied on the right to privacy of individuals with unenumerated rights, it is likely subject to legal challenges. The same-sex community would then be subjected to unimaginable exploitations and persecutions if that comes true. Many people still remember Matthew Shepard, who was beaten to death in 1998 at the age of 21, simply because of his sexual orientation. The reversal of legal protection of gay rights might make similar cases happen again.
As the most staunchly anti-LGBTQ Supreme Court justice, Samuel Alito could no longer hide his passion for the abolition of same-sex rights. If we read his majority opinion in the leaked decision and compare it to his dissent in Obergefell, we see that he followed the same logical reasoning in both decisions. As with the abortion issue, Alito firmly believes that as long as an issue is not mentioned in the Constitution, it should be part of the decision of the states, not the Supreme Court. In his dissenting opinion, he said that even if not enumerated, the Constitution should only guarantee rights that are “deeply rooted in this Nation’s history and tradition,” and that same-sex rights are not one of them. His dissent further accused Kennedy and other justices of trying to “circumvent the problems posed by the new rights found in these cases.”
Among Alito’s objections to the majority opinion, none is more outlandish and striking than this one: “the right to marry was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” Nowhere is Alito’s disdain for civil rights and his attachment to traditional values more directly reflected in his lengthy objections than in this sentence. One journalist playfully states that if marriage and procreation are inextricably linked, then those who have undergone ovariectomies, vasectomies, or are past childbearing age would not have the right to marry either.
Let us not forget that the Fourteenth Amendment to the Constitution was enacted after the end of the Civil War, which occurred because some Southern states wanted to continue the brutal and dehumanizing practice of slavery legally. The central element guaranteed by the Fourteenth Amendment is the autonomy of the American citizen, and there is nothing more fundamental to that autonomy than the autonomy of the body. If a person cannot determine their own bodily autonomy, then that person cannot be truly free, and naturally cannot be an equal member of society. What Alito wanted to deny in the leaked majority opinion is precisely what this amendment became law to avoid.
The Next Legal Stage
In his majority opinion overturning Roe, Alito cited a 1997 Supreme Court decision, Washington v. Glucksberg, which ruled that euthanasia is not Constitutionally protected on the grounds that The Fourteenth Amendment does not cover the right to physician-assisted suicide. Theoretically, the Obergefell decision emerged to challenge the legitimacy of the Washington decision and to free judgments involving law and rights from the shackles of the past. “History and tradition” should not be used to bind the unwritten rules and fundamental rights of the people at the time of the Constitution’s creation, but what Alito calls “deeply rooted in this Nation’s history and tradition” puts a question mark on that. According to New York University law professor Kenji Yoshino, any attempt to use history and tradition as an argument to dismiss a legal decision that has been in place for years is absurd, and the majority opinion’s cursory attempt to justify the decision as a decision that only deals with abortion is simply terrible. The archaic nature of the U.S. Constitution and its overly rigid process to ratify a new amendment, coupled with the Supreme Court’s consistent reliance on the Constitution in making its decisions, has led to the tragic result of Roe being struck down, which will lead to a constitutional crisis that will shake the country for years and even decades.
Let’s not forget that if this logic is followed, then same-sex rights would not be the only rights under threat. Progressive members of the Democratic Party, represented by Rep. Alexandria Ocasio-Cortez (D-NY) and Rep. Ilhan Omar (D-MN), have pointed out that racial equality can be abducted by similar notions of “history and tradition,” and that with enough right-wing politicians in the judicial and legislative branches, they could easily undo decades of effort: after all, slavery was widely legal at the time of America’s creation, and only white men who owned land had political rights.
Alito’s disregard for same-sex rights is clearly not news, and if given that opportunity, he would undoubtedly choose to overturn a series of Supreme Court decisions that guarantee same-sex rights as legal precedents. However, he would need four other people to hold a common opinion with him on this issue. The U.S. Supreme Court has a long history of respecting and following legal precedents (stare decisis), and no justice seems to be as opposing and as extreme as Alito on the issue of same-sex marriage rights. In a 2017 decision that again upheld same-sex marriage rights, fellow conservative Justices Clarence Thomas and Neil Gorsuch, have ruled that same-sex marriage rights are not a right along with Alito in their dissent. John Roberts, who had previously opposed the Obergefell decision, offered his support. At this point, the opinions of Amy Coney Barrett and Brett Kavanaugh, both of whom have previously expressed opposition to same-sex rights but have not yet taken a clear position, will determine the future of same-sex rights.
However, if the conservative judiciary, led by Alito, can continue to deny the fundamental rights granted by the Fourteenth Amendment, this radical move will not only result in a huge regression in the rights of the American people, but will also cause Americans to question the reliability and jurisprudence of the Constitution.
If more and more Americans believe that the highest organs of the judiciary do not recognize their rights to autonomy and equality, what will they do to ensure that these rights are guaranteed? At that point, the situation will likely no longer be decided by a few Supreme Court justices.
