LGBTQ activists alarmed over concurring opinion in abortion ruling

ABOVE: Justice Clarence Thomas in 2007. Photo public domain.

LGBTQ activists have expressed alarm over a concurring opinion issued June 24 by U.S. Supreme Court Justice Clarence Thomas calling for the high court to “reconsider” previous decisions overturning state sodomy laws and legalizing same-sex marriage as a follow-up to the court’s controversial ruling on Friday to overturn the Roe v. Wade decision on abortion rights.

In an action that drew expressions of outrage from abortion rights advocates and strong support by right-to-life advocates, the Supreme Court handed down a 6-3 ruling overturning the fundamental right to an abortion that the court established nearly 50 years ago in its landmark decision known as Roe v. Wade.

In his concurring opinion, Thomas said he supports the high court’s majority opinion overturning Roe v. Wade. He states that he agrees with the ruling that nothing in the majority opinion “should be understood to cast doubt on precedents that do not concern abortion.”

But he also states that in potential future cases, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

He was referring to the past Supreme Court Griswold ruling that overturned state laws banning or restricting birth control such as contraceptives; the high court’s 2003 Lawrence v. Texas ruling that overturned state laws banning sodomy between consenting adults; and the 2015 Obergefell ruling that legalized same-sex marriage nationwide.

“Justice Thomas’s concurring opinion is obviously concerning, but it is important to note that not one other justice agreed with him,” said Sarah Warbelow, legal director of the Human Rights Campaign, the nation’s largest LGBTQ rights advocacy group. “In fact, the majority took pains to disagree with him and clarify that this opinion relates only to abortion. Justice Thomas stands alone,” Warbelow told the Washington Blade in a statement.

“With that said, we know that if the court was willing to overturn 50 years of precedent with this case, that all of our constitutional rights are on the line,” Warbelow said. “Lawmakers will be further emboldened to come after our progress. So, we must be vigilant in protecting our hard-won rights — we’re ready.”

Paul Kawata, executive director of the National Minority AIDS Council (NMAC), said the Supreme Court ruling overturning Roe v. Wade would have a “disastrous effect” on healthcare for women, especially women of color. He said the ruling could also lead to future rulings that adversely impact LGBTQ people and other minorities.

“We have no doubt that the conservative supermajority on the court will not stop with Roe,” Kawata said in a statement. “Justice Thomas’s chilling concurring opinion makes it very clear that the court could target other rights provided by the court — marriage equality, contraception access, and LGBTQ+ intimacy in private to name a few,” he said.

Omar Gonzales-Pagan, who serves as legal counsel for the national LGBTQ litigation group Lambda Legal, said he is especially troubled that Thomas is continuing to push for ending the Supreme Court’s longstanding reliance on the so-called doctrine of substantive due process to expand the rights provided under the U.S. Constitution.

“Justice Thomas’s concurrence is incredibly troubling,” Gonzales-Pagan told the Blade. “Justice Thomas has made it clear that he doesn’t believe in the doctrine of substantive due process, and he called for the reconsideration of that entire doctrine,” he said.

“No other justices joined him on that opinion,” Gonzales-Pagan points out. “But, if the court were to go further than they did today and to reconsider the entire doctrine of substantive due process, it would really call into question all or a large part of the fundamental rights enjoyed by people in the United States.”

Gonzales-Pagan said that potential scenario could play out for same-sex marriage rights and the right of adults to engage in consenting sexual practices if a state or local jurisdiction attempts to pass a law to once again make same-sex marriage or sodomy between consenting adults illegal. Should that happen, the laws would be challenged in the courts and those cases would likely come before the Supreme Court just like the abortion cases did, according to Gonzales-Pagan.

He said he was hopeful but not at all certain that the other justices who did not sign on to Thomas’s concurring opinion could be taken at their word and they would not support overturning the Supreme Court’s Obergefell decision legalizing same-sex marriage or the Lawrence v. Texas decision declaring state sodomy laws pertaining to consenting adults unconstitutional.

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