On September 6, 2018, at the Senate confirmation hearings for Donald Trump’s Supreme Court nominee Brett Kavanaugh, then-Sen. Kamala Harris (D-CA) asked a series of questions regarding established precedent-setting landmark civil rights law — Brown v. Topeka Board of Education and Roe v. Wade. Among those is, according to Harris, Obergefell v. Hodges, the 2015 case in which the U.S. Supreme Court (SCOTUS) ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
Harris’s questioning is critical to understanding what comes next as the Trump SCOTUS — now an imbalanced 6-3 conservative-led court — seems poised to overturn Roe v. Wade, the 1973 decision in which the Court ruled that the Constitution protects a pregnant person’s liberty to choose to have an abortion without excessive government restriction as a matter of personal privacy.
On December 1, the Supreme Court heard oral arguments on a Mississippi law that bans abortions after 15 weeks of pregnancy. It is the most important abortion case in decades. Roe v. Wade prohibits states from banning abortions before fetal viability, which is at about the sixth month or around 23 weeks. But the SCOTUS has already refused to bring an injunction against the recent Texas ban on abortions after the sixth week.
Maintaining Roe v. Wade is crucial. Banning abortion has never successfully stopped abortions — it has just made them harder to access and made them far more dangerous. Justice Sonia Sotomayor made references to this fact in her comments during the oral arguments. She also queried when the lives of women took precedence. Some of her comments hinted at the problem of compulsory heterosexuality and forced pregnancy.
A lot hinges on how the SCOTUS rules in the Mississippi case. If the court finds in favor of Mississippi and overturns Roe as at least five of conservative justices seem poised to do, then abortion would become illegal nationally. Concomitantly, other cases predicated on Roe could also fall.
Among those is Obergefell v. Hodges.
It’s instructive to revisit Harris’s brief but intense questioning of Kavanaugh on Obergefell.
HARRIS: My question is very specific. Can you comment on your personal opinion on whether Obergefell was correctly decided? It’s a yes or no, please.
KAVANAUGH: In Masterpiece Cakeshop, and this is, I think, relevant to your question, Justice Kennedy wrote in the majority opinion joined by Chief Justice [John G.] Roberts [Jr.] and Justice [Samuel A.] Alito [Jr.] and Justice [Neil M.] Gorsuch and Justice [Stephen G.] Breyer and Justice [Elena] Kagan, the days of discriminating against gay and lesbian Americans, or treating gay and lesbian Americans as inferior in dignity and worth, are over. [Masterpiece Cakeshop v. Colorado Civil Rights Commission is a case in which the Supreme Court ruled for a Colorado baker who refused to create a wedding cake for a same-sex couple.]
HARRIS: Do you agree with that statement?
KAVANAUGH: That is the precedent of the Supreme Court agreed with by—
HARRIS: Sir, I’m asking your opinion. You’re the nominee right now, and so it is probative of your ability to serve on the highest court in our land. So I’m asking you a very specific question. Either you’re willing to answer it or not. And if you’re not willing to answer it, we can move on. But do you believe Obegefell was correctly decided?
KAVANAUGH: Each of the justices have declined as a matter of judicial independence — each of them — to answer questions in that line of cases.
HARRIS: So you will not answer them?
KAVANAUGH: Following the precedent set by those eight justices, they’ve all declined when asked to answer that question.
HARRIS: Thank you.
After the hearing, Harris tweeted: “Obergefell was one of the great moments in the history of the Supreme Court of the United States. Full stop.”
Her sister, Maya Harris, a law school dean, tweeted, “If #Kavanaugh could say Brown v Board was one of the greatest moments in #SCOTUS history, why won’t he say Obergefell, which established LGBT marriage equality, was similarly one of the great moments in the Court’s history?”
Shannon Minter, a civil rights attorney, the legal director of the National Center for Lesbian Rights and a trans man who argued the Prop 8 case before the California Supreme Court, tweeted, “#Kavanaugh’s refusal to disavow, in any context, anti-#LGBT discrimination speaks volumes: he is telling us where he stands on LGBT equality & what we can expect.”
And now as Roe is on the precipice, so too is Obergefell. Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas all voted against Obergefell in 2015, with Roberts writing the dissent. While it’s possible Roberts will not vote to overturn Roe, strictly to maintain political balance, which Justice Sonia Sotomayor called into question during the hearings in the Mississippi case, that would still leave a five-justice majority to overturn Roe. And Roberts would have no compunction to vote against his own prior dissent in any case that challenged Obergefell.
The link between Roe and LGBTQ rights cases dates back to Bowers v. Hardwick in 1986. In writing his dissent, Justice Harry Blackmun, who authored Roe, framed the case around the right to privacy with Roe as the predicate. In his dissent Blackmun said the SCOTUS had adopted an “almost obsessive focus on homosexual activity” and an “overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases.”
In response to Justice Byron White’s majority opinion invoking religious taboos against homosexuality, Blackmun wrote: “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”
In 2003, in Lawrence v. Texas, SCOTUS overturned the Hardwick case, holding that anti-sodomy laws are unconstitutional. Bowers is now sometimes included in lists of the worst SCOTUS decisions. Justice Anthony Kennedy wrote the majority opinion in both Lawrence and Obergefell. When he retired in 2017, he was replaced by Kavanaugh.
Overturning same-sex marriage is a stated goal of the Republican party platform, as is overturning Roe. These “culture wars” issues will likely play a role in the 2022 midterms and definitely will factor in the 2024 presidential election. The Mississippi case will not see a determination until June when the SCOTUS delivers all its major case rulings.
The Women’s Health Protection Act (WHPA), a bill that would protect the right to access abortion around the country and overturn new abortion bans like that in Mississippi and Texas, is before the Senate. The filibuster stands in the way of passing the WHPA. Democrats in the Senate could abolish the filibuster — which President Biden and VP Harris have both called a relic of the Jim Crow era — and pass the WHPA. But even if that happened (which is unlikely) if the Supreme Court overturns Roe, Obergefell could be next.