On June 4, Ryan Bomberger of the Radiance Foundation called out LGBT rights leaders for their hypocritical support of abortion. In particular, he cited Lambda Legal's statement that “reproductive freedom and LGBT rights have been inextricably linked both legally and politically. The ties between these rights are so strong that we really believe that a threat to one directly and profoundly impacts the other.”
On June 26, the U.S. Supreme Court released its opinion in Obergefell v. Hodges, declaring state laws against same-sex marriage void. The majority opinion was written by Justice Kennedy, who is widely recognized to be the Court's swing vote on abortion. Notably, he did not cite any abortion cases. However, he did cite contraception cases, which were expanded upon to invent a “right” to abortion in Roe v. Wade. This has some pro-life leaders worried that Obergefell could be a bad decision for the preborn.
Since I am a lawyer, I share this summary for the benefit of pro-life legal advocates as well as the pro-life community at large. In my view, Obergefell is a mixed bag. It provides language the abortion industry can use. It also provides language the pro-life movement can use, and Justice Kennedy's refusal to cite an abortion case is very encouraging. At the end of the day, though, Obergefell is unlikely to have a significant impact on abortion jurisprudence.
Justice Kennedy's opinion opens with a discussion of the history of marriage: Justice Kennedy then turns to the personal stories of some of the plaintiffs: James Obergefell, whose partner died of ALS shortly after they traveled outside of their home state to marry; April DeBoer and Jayne Rowse, who are jointly raising three children but cannot jointly adopt them; Ijpe DeKoe, who served in Afghanistan with the support of his stateside partner Thomas Kostura. “Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses' memory, joined by its bond.”
The opinion next discusses how opposite-sex marriage has changed over time, particularly with respect to the abandonment of “coverture,” a doctrine that effectively subsumed a wife's legal identity under her husband's. “These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”
This segues into a discussion of the LGBT rights movement, beginning with homosexual activity criminalized and homosexuality viewed as mental disorder, through the Supreme Court decisions in Bowers v. Hardwick, Romer v. Evans, Lawrence v. Texas, and finally the various same-sex marriage decisions in the lower courts.
Finally, the introductions are over and Justice Kennedy begins his discussion of the Due Process Clause. He cites the contraception cases, writing: “[T]hese liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 484-486 (1965).”
In a passage that certainly rings true to me as a fighter against the injustice of abortion, Justice Kennedy declares:
“Applying these established legal tenets,” the Court decided Loving v. Virginia (allowing interracial couples to marry), Zablocki v. Redhail (allowing men behind on child support to marry), and Turner v. Safley (allowing prison inmates to marry).
Justice Kennedy states four reasons why same-sex marriage must receive the same type of Constitutional protection under the Due Process Clause: (1) “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy.” The opinion points to Loving first, but adds: “Like cases concerning contraception, family relationships, procreation, and childbearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.” As far as the right to life is concerned, that is the most troubling line in the opinion. “Intimate decisions about childbearing” can be read as polite legalese for killing preborn children.
The remainder of this section, however, focuses on the unique nature of marriage. (2) “[T]he right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Justice Kennedy quotes a passage from Griswold about the “association” of marriage, as well as passages from Windsor and Lawrence. The Court adds: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”
(3) “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education.” Here the Court cites precedents protecting a parent's right to place children in private education. The Court emphasizes that children of same-sex couples will benefit from the increased stability offered by marriage. (At the same time, it recognizes that marriages without children are valid too.) This is a decent section for pro-life advocates. Abortion obviously does not safeguard children. Quite the opposite.
(4) “Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order.” Here Justice Kennedy outlines some of the many legal benefits connected to marriage. The consequence of this legal framework is that, without same-sex marriage, LGBT couples “are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.”
Justice Kennedy then moves to a fifth basis for the opinion: the Equal Protection Clause. “[I]n interpreting the Equal Protection Clause, the Court has recognized that new insights can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” This is exactly the argument that pro-life advocates make with respect to the preborn, whose legal personhood has been stripped from them despite the scientific advancements that make it clear that preborn human beings are as human and alive as the rest of us.
So where does all of that leave us? Justice Kennedy was smart. By writing an opinion that does not cite any abortion cases, he has assured that Obergefell will withstand the reversal of Roe and Casey. Lambda Legal’s statement that abortion and LGBT rights are “inextricably linked” has been proven very wrong. That took restraint on Justice Kennedy's part, because Casey contains a lengthy discussion of the Due Process Clause—which he authored. He could have had a grand time quoting himself. Instead, crickets. That leaves the door open for him to step back from Casey in the future and be a fifth pro-life vote. It's no guarantee, of course. But if he had cited Casey, I would be writing a very pessimistic article. The fact that he didn't gives me hope.
That doesn't mean abortion advocates won't try to add Obergefell to their arsenal, of course. Naturally, they'll try any legal argument they can. But Obergefell doesn't say much that's helpful to the abortion industry beyond what was already present in the contraception cases. And Obergefell contains arguments that are helpful to the pro-life cause, too, chief among them the recognition that legal injustices that were once commonly accepted may come to light with time and be undone by the Court. Ultimately, Obergefell is an opinion about the centrality of marriage in people's lives. It is an opinion about “the hope of companionship,” commitment, family, and love. Abortion is many things, but abortion will never be about love.
3. Syllabus: OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.