Samuel Alito’s Ludicrous Logic Might Endanger More Rights Than Just Abortion

Issues including gay rights and civil rights may be under conservative retroaction

Image by Elvert Barnes via Flickr

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.

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 Once similar legal challenges arise, not only will same-sex marriage rights be repealed, but they will even try to overturn rulings such as Lawrence v. Texas, which explicitly required states to refrain from enacting laws restricting consensual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.

Image by Danielle Thomas via Facebook

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.

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Allen Huang

Allen Huang

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#AAJA member, student freelancer, sometimes writes unpopular opinions.