Gay Marriage Is Next Up on the Supreme Court Chopping Block

I am approximately zero percent surprised by the draft opinion overturning Roe v. Wade, authored by Supreme Court Justice Samuel Alito, that was leaked to Politico.

Not only am I unsurprised—I predicted it, several times, in this publication. And not just me, of course, but everyone in my profession. Overturning Roe is in the Republican Party’s platform. It was the primary criterion that the Federalist Society, funded by religious extremists, used to pick Supreme Court justices for Donald Trump. Together with desegregation, it propelled the Religious Right to get into politics 50 years ago, and vote for Republicans ever since.

So, yes, we all told you this was inevitable. And now it is here.

But “you”—by which I mean the large majority of voters who say that women have a right to control their own bodies—didn’t listen. The Supreme Court ranked at the bottom of Democrats’ concerns in 2016, while it was at the top of Republicans’. Even after the unprecedented and norm-shattering mistreatment of judicial nominee Merrick Garland, many centrist voters didn’t care and some left-wing voters didn’t think it was enough to stomach voting for Hillary Clinton.

So we got Justices Gorsuch, Kavanaugh, and Barrett, and now, if this draft becomes the majority opinion, we’ve got the end of Roe v. Wade.

But that’s only the beginning of the end. If the reasoning of the draft becomes the majority opinion—and it is worth stressing that this is by no means assured, since it is a draft and may well be watered down by other justices—then it applies equally to Obergefell v. Hodges, which held that all marriages (including my same-sex one) are protected by the Constitution; to Lawrence v. Texas, which held that all intimate sexual activity (including same-sex) was too; and to Griswold v. Connecticut, which held that the right to access contraception is as well.

All those cases held that certain specific rights to bodily integrity and privacy, though unmentioned in the Constitution, are implicit in the broad guarantees of the 14th Amendment, as long as they were part of the “concept of ordered liberty.” It’s not part of the concept of liberty to police a woman’s uterus or a gay man’s bedroom. There are limits to government power, and no process can be “due process” if it transgresses those limits.

But in so-called Originalism, a once-fringe legal theory that is now the gospel of half the Supreme Court, a right must also be “part of the Nation’s history and traditions” to be protected. Sorry, women and gays, you’re not part of our white-male-dominated history and traditions, so the constitution doesn’t protect you.

To be clear, Justice Alito didn’t leave this to speculation. He specifically mentioned Obergefell and Lawrence as examples of the same faulty reasoning behind Roe.

So, in case folks weren’t listening when all those legal Cassandras warned that Roe was going to be overturned, please listen now: Gay marriage is too. Within a year or two. Unless another justice leaves the court, the constitutional right to marriage for all is going to be overturned. The only question is whether Republicans will have a veto-proof majority (or the presidency in 2024) to ban both abortion and gay marriage anywhere in the nation.

I’m not sure where that leaves my custody of my child, but I can tell you that I am certain that my family will not be protected by the Constitution two years from now.

So, what can liberals do now?

Not much, really. It’s too fucking late. What liberals should have done in 2016 was ensure that a Democrat won the oval office. They should have arm-twisted their Jill Stein friends, and let their Republican relatives know that, hey, women are people and shouldn’t be forced by the government to carry a fetus (or a blastocyst, or an embryo) inside of their womb. And that those very rights were at stake in 2016, and again in the Senate elections of 2018, and again in 2020, and again in the Senate elections this year.

Of course, I’m sure liberals will hold marches, because that’s what we like to do. March and rally and chant. We like to do things that give ourselves the illusion of power. That’s why liberals reduce their “carbon footprints,” even though that concept is a neo-liberal scam, invented by British Petroleum to dodge collective responsibility for climate change and place it on individuals instead. It’s why liberals think that occupying a public square is a “victory,” even if it accomplishes nothing.

The question is, will liberals continue to sublimate their rage into meaningless acts that make them feel better, or will they exercise actual power, by voting Democrats into office on local, state, and national levels, and by demanding that the desecration of the Supreme Court that took place during the Trump years (and the last of Obama’s) be corrected immediately, by changing the size of the court or enacting term limits or both?

And in the meantime, will liberals donate enough money to pro-abortion organizations so that every woman who wants one can travel to a state where her rights are still respected? Will moderate white women—looking at you, Susan Collins—finally realize that a party that sells out to Christian theocrats is not looking out for their best interests?

I’m ashamed to admit that I still have a little optimism here. As I’ve written before, I think the abortion case and the gun control case (don’t forget that one—half the nation’s gun safety laws are likely to be struck down too) have the capacity to energize two non-overlapping groups essential to the Democrats’ success: young progressives (especially people of color) and moderate white women. Without minimizing the gigantic practical and symbolic damage this decision will do on women across the country, I still have some flickering hope that it will also wake up enough people to make a difference in November.

In the meantime, all I can say to all of my female friends, as we watch your rights be stripped away by Christian extremists placed on the Supreme Court by other Christian extremists, is that I’ll be joining you soon. They’ve never accepted our full humanity, and now they’re putting us back in our places.