AUSTIN, Texas — A leaked draft of the U.S. Supreme Court’s forthcoming opinion on abortion says that the rights to gay marriage and same-sex partner intimacy may be safe — but only for now.
On Monday, Politico released a document that shows the court is poised to overturn the right to abortion decided in the 1973 landmark Texas case Roe v. Wade. Chief Justice John Roberts on Tuesday confirmed the leaked document’s veracity, but said it does not represent the court’s decision or the ultimate position of any justice.
If it proves to be the final version, or close to it, the opinion would not only uphold a Mississippi ban on abortions at 15 weeks but also overturn Roe and trigger even stricter bans in other states, including Texas.
Constitutional law experts believe the draft opinion also sheds light on the future of LGBTQ rights in this state and across the country. In the document, Justice Samuel Alito makes clear that the decision would apply only to abortion and that it should not be read to have any effect on previous rulings upholding gay unions and striking down bans on gay sex.
This should provide some comfort to LGBTQ rights advocates, experts said. But they added that couched in this assurance is a warning.
Overturning Roe would show no precedent is sacred. And the draft document circulating, while narrowly tailored to the abortion issue, also gives activists a playbook for how in future to target other rights rooted in the same principles, like privacy, autonomy and family choice.
For those living in states like Texas — whose lawmakers never axed constitutionally unenforceable laws banning sodomy or defining marriage as strictly a heterosexual affair — Alito’s deference to the will of local legislatures sets the state Capitol and not the courtroom as the final battleground for the question of LGBTQ rights.
With their holy grail attained — striking down the right to abortion — will conservatives go after gay marriage next?
“Those rights are secure for now,” Dale Carpenter, constitutional law chair at SMU’s Dedman School of Law, said. “But be on guard.”
What does the leaked draft say about LGBTQ rights?
The draft opinion addresses LGBTQ rights in two different places, Carpenter said.
In a section discussing precedent, Alito said that abortion is distinguished from other divisive cultural issues because it involves “potential life.”
“None of the other decisions cited by Roe and (Planned Parenthood v.) Casey involved the critical moral question posed by abortion. They are therefore inapposite,” Alito wrote.
The draft repeats this distinction later and goes a step further to explicitly allay the fears of those who would read this opinion as a rejection of same-sex marriage and other LGBTQ rights.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote.
Carpenter said this means LGBTQ cases already decided by the court won’t be “immediately and directly” imperiled.
“He’s offering reassurance about the security of other rights — for the time being,” Carpenter said. But he added that the entire opinion, at least the draft as written, is “hostile” toward rights that are not specifically named in the U.S. Constitution — including marriage, sexual intimacy and even contraception.
Anthony Michael Kreis, a constitutional law professor at Georgia State University, described the array of American rights as a tapestry.
“Once you pull one string, the others become much more loose. The binding is really threatened,” Kreis said. “All of our rights, all of our civil liberties, they rise and fall together. They’re intertwined.”
While the fabric of LGBTQ rights would not unravel immediately, Kreis said it would be much easier for anti-gay advocates to fray it around the edges as Roe falls. If the right to privacy is lost in the abortion setting, for example, states could argue they have an interest in imposing their will on other private medical decisions, like treatments for transgender patients, especially children and adolescents.
“We’re in for a very ugly few months, few years,” Kreis said.
What could the leaked draft mean for LGBTQ rights in Texas?
The draft document also forecasts another potential change, according to the experts. With the justices deferring more to the states, LGBTQ activists will be able to rely less on court precedent to uphold rights like marriage and sexual intimacy.
Despite the 2015 Obergefell v. Hodges ruling legalizing same-sex unions nationwide, the Texas Constitution still defines marriage as between one man and one woman. Legislators also never removed the state’s law outlawing gay sex from statute, despite the Supreme Court’s 2003 Lawrence v. Texas ruling that struck down sodomy bans here and in at least 12 other states.
“If the Supreme Court were ever to reverse itself on marriage or sexual intimacy, those laws are ready to spring into life and prosecutors could argue that they could enforce them again,” Carpenter said.
Banning same-sex marriage will be very difficult, he said, not just because millions of gay Americans have already been wed but also because their unions have already impacted other areas of law regarding children, spousal benefits and end-of-life decisions. Banning same-sex intercourse would be an ever harder sell if gay marriage were allowed to stand, Carpenter added.
But, he said shifting the power to regulate abortion back to the states shows the frailty of even these judicial decisions.
“It ought to be part of the project of the (LGBTQ rights) movement to secure legislative victories as well as judicial victories because, as we see today, judicial victories are not secure — even 50 years later,” Carpenter added.
In tweets and press releases, Lt. Gov. Dan Patrick and Attorney General Ken Paxton applauded the draft opinion. The state’s top elected officials did not answer questions about what the forthcoming abortion ruling will mean for LGBTQ rights in Texas.
But on Tuesday, a tweet went viral in which author and LGBTQ advocate Brynn Tannehill speculated that Paxton and Gov. Greg Abbott would employ the same method used to target gender-affirming care for trans youth to target same-sex marriage: The attorney general could issue a nonbinding legal opinion saying the Roe ruling makes Obergefell unenforceable in Texas; the governor could then direct clerks to stop issuing marriage licenses to same-sex couples.
Carpenter said this could happen — a tactic he described as the “Texas two step” — but believes it would likely be put on hold while LGBTQ rights activists fought the issue in court.
While the state’s top elected officials have remained mum on what striking down Roe would mean for LGBTQ rights, the architect of the most recent Texas abortion law, known as Senate Bill 8, has already said that they could be next on the chopping block. In an amicus brief supporting Mississippi in the abortion case, Jonathan F. Mitchell told the justices not to be squeamish about going after gay marriage, or more, in their final decision.
“The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage,” Mitchell wrote, after arguing that interracial marriage should remain legal across the land. “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions.”
The Dallas Morning News was unable to reach Mitchell on Tuesday about his statements regarding LGBTQ rights. He concluded his brief with a reminder: The court doesn’t have to overturn its earlier decisions on gay marriage and gay sexual relations in the abortion ruling.
“But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread,” Mitchell wrote. “Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.”
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