A leaked draft opinion suggesting the Supreme Court will eradicate the national right to abortion has set off a wave of conjecture that the justices could also roll back the right to same-sex marriage, erasing decades of activism by the LGBTQ community.
Some say the draft opinion in the abortion case provides a road map for the court to hold that same-sex marriage is not a fundamental right, while others argue that there is no public appetite for putting that issue before the court. They also point out that Alito, who was appointed by President George W. Bush, explicitly stated in the draft opinion that his reasoning was not meant to apply to any rights besides abortion.
As a result, Woods said, advocates who oppose same-sex marriage could use Alito’s logic as guidance for new lawsuits attempting to overturn. Woods said he was also unnerved by Alito’s comment that appeals to people’s right to autonomy could lead to a slippery slope in which prostitution and illicit drug use are protected. The dissenting justices inthat struck down a ban on consensual sex between adults of the same sex relied on a similar argument, he said.
Katie Eyer, a professor at Rutgers University with expertise in anti-discrimination law, said Alito’s draft opinion relies on a narrow interpretation of what constitutes a fundamental right — the same question at issue in. The draft opinion also suggested a willingness to reconsider established precedent, she added.61 percent, as of 2019
“The individual plaintiffs in these cases lose, and then the court doesn’t go anywhere with it,” Eyer said. “It doesn’t end up overturning other opinions.”Alito’s statements in the draft opinion that the ruling applies only to abortion is another reason to think the court is not necessarily interested in repealing the right to same-sex marriage, said Douglas NeJaime, a professor at Yale Law School with expertise in sexuality and constitutional law.
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