{"id":8083,"date":"2022-06-11T14:15:57","date_gmt":"2022-06-11T14:15:57","guid":{"rendered":"http:\/\/lonecandle.com\/?p=8083"},"modified":"2022-06-11T14:15:57","modified_gmt":"2022-06-11T14:15:57","slug":"if-roe-v-wade-falls-are-lgbtq-rights-next","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=8083","title":{"rendered":"If Roe v. Wade falls, are LGBTQ rights next?"},"content":{"rendered":"\n

\n\n“Justice Samuel Alito\u2019s draft opinion overruling Roe v. Wade<\/em><\/a>, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected<\/a> by the Constitution and which rights should not be enforced by the courts.<\/p>\n\n\n\n

And Alito\u2019s opinion is also a warning that, after Roe<\/em> falls, the Court\u2019s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges<\/em> (2015) or the sexual autonomy decision in Lawrence v. Texas<\/em><\/a> (2003).<\/p>\n\n\n\n

To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe<\/em><\/a>, no justice\u2019s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe<\/em>, one or more of his colleagues in the majority could insist that he make changes to the opinion.<\/p>\n\n\n\n

Alito\u2019s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe<\/em><\/a>, but much of Alito\u2019s reasoning in the draft opinion tracks arguments he\u2019s made in the past in dissenting opinions disparaging LGBTQ rights<\/a>.<\/p>\n\n\n\n

The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that \u201cthe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people<\/a>.\u201d<\/p>\n\n\n\n

Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.<\/p>\n\n\n\n

The central thrust of Alito\u2019s draft opinion in Dobbs v. Jackson Women\u2019s Health Organization, <\/em>the case seeking to overrule Roe<\/em>, is that only rights that are \u201cdeeply rooted in this Nation\u2019s history and tradition\u201d and \u201cimplicit in the concept of ordered liberty,\u201d are protected. This method of weighing unenumerated rights is often referred to as the \u201cGlucksberg<\/em>\u201d test, after the Court\u2019s decision in Washington v. Glucksberg<\/em><\/a>(1997).<\/p>\n\n\n\n

Though Alito\u2019s Dobbs<\/em> opinion largely focuses on why he believes that the right to abortion fails the Glucksberg<\/em> test, there is no doubt that he also believes that other important rights, such as same-sex couples\u2019 right to marry, also fail Glucksberg<\/em> and are thus unprotected by the Constitution. Alito said as much in his Obergefell <\/em>dissent<\/a>, which said that \u201cit is beyond dispute that the right to same-sex marriage is not among those rights\u201d that are sufficiently rooted in American history and tradition.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell<\/em> and United States v. Windsor<\/em><\/a> (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence<\/em> opinion and the Court\u2019s decision in Romer v. Evans<\/em><\/a> (1996), the first Supreme Court decision establishing that the Constitution places limits on the government\u2019s ability to target gay or bisexual individuals.<\/p>\n\n\n\n

Given his longtime role as the Court\u2019s voice on gay rights, it\u2019s tempting to think of Kennedy as a staunch supporter of these rights (I use the word \u201cgay\u201d and not \u201cLGBTQ\u201d because Kennedy\u2019s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell <\/em>and Windsor<\/em> were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence \u2014 on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.<\/p>\n\n\n\n

The result is that Kennedy\u2019s great gay rights decisions were poorly argued<\/a>. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/23058465\/supreme-court-roe-wade-lgbtq-samuel-alito-marriage-equality-obergefell-lawrence<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“Justice Samuel Alito\u2019s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.<\/p>\n

And Alito\u2019s opinion is also a warning that, after Roe falls, the Court\u2019s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).<\/p>\n

To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice\u2019s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.<\/p>\n

Alito\u2019s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito\u2019s reasoning in the draft opinion tracks arguments he\u2019s made in the past in dissenting opinions disparaging LGBTQ rights.<\/p>\n

The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that \u201cthe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.\u201d<\/p>\n

Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.<\/p>\n

The central thrust of Alito\u2019s draft opinion in Dobbs v. Jackson Women\u2019s Health Organization, the case seeking to overrule Roe, is that only rights that are \u201cdeeply rooted in this Nation\u2019s history and tradition\u201d and \u201cimplicit in the concept of ordered liberty,\u201d are protected. This method of weighing unenumerated rights is often referred to as the \u201cGlucksberg\u201d test, after the Court\u2019s decision in Washington v. Glucksberg (1997).<\/p>\n

Though Alito\u2019s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples\u2019 right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that \u201cit is beyond dispute that the right to same-sex marriage is not among those rights\u201d that are sufficiently rooted in American history and tradition.”<\/p>\n

…<\/p>\n

“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court\u2019s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government\u2019s ability to target gay or bisexual individuals.<\/p>\n

Given his longtime role as the Court\u2019s voice on gay rights, it\u2019s tempting to think of Kennedy as a staunch supporter of these rights (I use the word \u201cgay\u201d and not \u201cLGBTQ\u201d because Kennedy\u2019s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence \u2014 on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.<\/p>\n

The result is that Kennedy\u2019s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[429,790,696,1213,919,536,1227,528],"class_list":["post-8083","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-constitution","tag-courts","tag-gay","tag-judiciary","tag-lgbtq","tag-rights","tag-roe-v-wade","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8083","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8083"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8083\/revisions"}],"predecessor-version":[{"id":8084,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/8083\/revisions\/8084"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8083"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8083"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8083"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}