It’s not paranoia. Supreme Court could come for gay marriage and contraception

Isadora Rangel
The Miami Herald (TNS)
Capitol Police watch an abortion-rights rally from behind the security fence surrounding the Supreme Court on June 23, 2022, in Washington, DC.  (Nathan Howard/Getty Images/TNS)

Women and LGBTQ people woke up on Friday to a world in which their rights to prevent pregnancies, have sex and marry could vanish with the stroke of a Supreme Court ruling.

This dystopian, “Handmaid’s Tale” scenario isn’t just liberal hyperbole, I hate to say.

The U.S. Supreme Court opinion reversing Roe v. Wade released Friday took away the constitutional right to an abortion, leaving states to decide the issue. The 200-plus-page package delivered by the court also contains something even more chilling: a concurring opinion penned by Justice Clarence Thomas arguing the court “should reconsider” other rulings that codified rights to same-sex relationships and marriage as well as access to contraception. The court based Roe v. Wade and these other rulings — Griswold v. Connecticut, Lawrence V. Texas, and Obergefell v. Hodge — on the 14th Amendment’s due process clause.

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Under Thomas’ reasoning, Friday’s ruling elicits the revision of all similar precedents.

He wrote that “...we have a duty to ‘correct the error’ established in those precedents.” He spoke for himself, not the other five conservative justices, but his opinion is an implicit invitation for red states to pass laws that run afoul of those precedents in hopes of reversing them.

His writing confirms fears that the overturn of Roe v. Wade is just the first shoe to drop in the court’s usurpation of rights we thought were woven into the fabric of our society. The court’s three liberal justices echoed that concern, writing in their dissenting opinion that “no one should be confident that this majority is done with its work.”

For women who couldn’t care less about the end of Roe v. Wade — thinking they’d never have an abortion, anyway — it’s time to start caring. Thanks to the 1965 Griswold v. Connecticut ruling, the middle-aged men who run most state capitols cannot prohibit you from accessing birth control.

But, c’mon, women take the pill like they take vitamins nowadays. Who would ban contraception? Probably people like the governor of Mississippi, who won’t rule that out, or Republicans who tried to stop Missouri’s Medicaid agency from paying for the morning-after pill and IUDs.

These are the kinds of politicians in control of many state legislatures, which, without constitutional protections, would be in charge of deciding what happens to contraceptives, same-sex relationships and same-sex marriage. That would create a divide in America, where your liberties are dictated by the state in which you live.

And Florida isn’t looking too good.

The Sunshine State is home of the parental rights bill dubbed “Don’t say gay,” of a governor who has rallied against drag queen shows and where a state senator took to the Senate floor to declare that “LGBT is not a permanent thing.” Miami Sen. Ileana Garcia’s Republican colleagues who run state government didn’t rebuke her nonsensical speech.

If the landmark 2015 ruling on Obergefell v. Hodge is reversed, you can guess on which side of the gay-marriage debate Florida would fall.

Things could get even more absurd.

In 2003’s Lawrence v. Texas, the court ruled that a Texas law that made same-sex sexual activity a crime violated the 14th Amendment’s due process clause. Not surprisingly, Thomas dissented. Without that precedent, states would be allowed to arrest and prosecute people who engage in gay sex.

That seems unlikely to happen in 2022. But it’s not paranoia to wonder what could happen in red states when you read the Texas Republican Party’s 2022 platform: “Homosexuality is an abnormal lifestyle choice. We believe there should be no granting of special legal entitlements or creation of special status for homosexual behavior.”

There’s a bit of solace in Florida GOP U.S. Sen. Rick Scott’s rebuke of the Texas platform this week. He said his party is “inclusive,” but his words ring hollow given how Florida Republicans have treated their LGBTQ constituents.

A world in which our rights could be taken so quickly used to feel like the stuff of literary fiction. But Thomas’ opinion reads more like a bad omen.

— Isadora Rangel is a member of the Miami Herald’s Editorial Board.