What happens if SCOTUS repeals Obergefell v. Hodges when Court resumes?

Supreme Court in early 2022
Supreme Court in early 2022

With the implosion of Roe v. Wade, previous rumblings about what else may be at stake have suddenly became a stark reality. Though there was a little bit of a “brace for it” mentality after an unprecedented leak of the Supreme Court’s brief, the actual decision handed down in June was a nightmare come true and brought other concerns to the forefront.

Prior to the June decision, it was felt that Roe v. Wade was done and settled, having been a precedent for nearly 50 years. During their confirmation hearings and subsequent private conversations with Senators Joe Manchin (D-W. Virginia) and Susan Collins (R-Maine), Justices Kavanaugh and Gorsuch both said as much. Now that they’ve shown their word isn’t worth much, it brings concern over other ‘settled’ decisions into sharper focus.

Rumblings about what else could be repealed spread rapidly after the June decision sparked outrage were confirmed by Justice Clarence Thomas’s opinion in which he wrote that the justices should “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell..

With his opinion, Thomas undermined the majority opinion penned by Justice Samuel Alito. “Our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Even fellow Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — the three who dissented in the decision to repeal Roe v. Wade — expressed distrust in their fellow Justices. “The first problem with the majority’s account comes from [Thomas’] concurrence — which makes clear he is not with the program,” Breyer, Sotomayor and Kagan wrote, adding, “At least one Justice is planning to use the ticket of today’s decision again and again and again.”

Thomas’s opinion that the Court revisit such crucial decisions — and if the majority of the Justices decide to repeal these decisions — it would have an immediate and terrible impact on things like right to contraceptives (Griswold v. Connecticut), the right to privacy (Lawrence v. Texas), and the right to same-sex marriage (Obergefell v. Hodges). What it would do is put these decisions back on the state, taking away a federal statute that has given thousands of LGBTQ couples the right to marry freely and without restriction.

The two bigger concerns for the LGBTQ community would be if the decisions were reversed in Lawrence v. Texas and Obergefell v. Hodges. Lawrence was a decision that challenged the constitutionality of a Texas law that classified consensual, homosexual intercourse as illegal sodomy, saying that it violated the privacy and liberty of adults to engage in private, intimate conduct under the 14th Amendment.

In 1988, a former boyfriend called police on John Geddes Lawrence Jr., claiming there was a man with a weapon in the apartment. Instead, police found Lawrence engaged in sexual intercourse with Tyron Garner. Both men were arrested and charged with a misdemeanor under Texas law. Both pleaded no contest and were fined. With the help of Lambda Legal, the two appealed their sentences to the Texas Courts of Appeals, which ruled in 2000 that the sodomy law was unconstitutional. However, the state appealed to have the court rehear the case and in 2001 overturned the prior judgement, with the Texas Court of Criminal Appeals denying Lawrence’s request for appeal. Lawrence then went to the Supreme Court, which struck down the Texas sodomy law in a 6-3 decision, which also negated sodomy laws in 13 other states.

Thomas was a dissenter in this decision, writing, “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to ‘decide cases “agreeably to the Constitution and laws of the United States.”‘ And, just like Justice Stewart, I ‘can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,’ ibid., or as the Court terms it today, the ‘liberty of the person both in its spatial and more transcendent dimensions,’ ante, at 1.”

Not surprisingly, Thomas also dissented in Obergefell v. Hodges, writing, in part, “By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue ‘beyond the reach of the normal democratic process.’ Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a ‘bare majority’ of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only ‘due process’ is but further evidence of the danger of substantive due process.”

Should Lawrence and/or Obergefell be repealed like Roe v. Wade, there will be no federal protection, putting the power back in the states’ hands for both. As already seen with the repercussions from the Roe repeal, restrictive and arcane laws could be put back on the books in states like Texas and Florida. The government of both states have already shown an utter disregard for the civil rights of marginalized communities.

Prior to the 2015 decision in Obergefell, 38 states, one territory (Guam) and the District of Columbia legalized same-sex marriage with three (Missouri, Kansas, Alabama) having restrictions. Before 2013’s United States v. Windsor decision that ruled the Defense of Marriage Act unconstitutional, it was legal in only 12 states and the District of Columbia. 35 states do have laws barring same-sex marriage still on their books, archaic reminders that can be resurrected should Obergefell be reversed. Another horrific possibility is that existing marriages could be invalidated, which is an extreme, worst-case scenario.

Thomas has already made clear his stance on the freedoms of maligned and marginalized; with the way Kavanaugh and Gorsuch have shown their word can’t be trusted, Amy Coney Barrett has criticized Obergefell, and Samuel Alito has aligned his opinion with Thomas’s. A repeal of Supreme Court decisions concerning very basic rights seems almost inevitable. Another scary possibility is coming out of states like Texas and Florida, where lawyers are filing briefs with the Supreme Court asking for the repeal of Obergefell and Lawrence.

One such brief was filed last year by Jonathan Mitchell, the architect of Texas’ barbaric abortion ban. Mitchell and co-author Adam Mortara filed the brief in late 2021 in a case involving a Mississippi law banning abortion after 15 weeks of pregnancy except “in medical emergencies or for severe fetal abnormality”. But abortion wasn’t the only thing referenced, with the brief referring to “court-invented rights to homosexual behavior and same-sex marriage”, saying, “these ‘rights’, like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.

“The right to marry an opposite-sex spouse is ‘deeply rooted in this Nation’s history and tradition’; the right to marry a same-sex spouse obviously is not,” they wrote. “This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey [a later ruling that upheld Roe] in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.”