PORTLAND, Ore. (KOIN) — Friday’s ruling from the United States Supreme Court wasn’t as much shocking for what it ruled—a draft of an opinion that reads similar to the actual decision had been public for weeks—but rather, what was coming next.
Often is the case following SCOTUS decisions, legal analysts will be broadcast on the airwaves giving their analysis of the future or what one ruling means for another issue. Such was not the case Friday as one Supreme Court Justice said it plainly and clearly for all the read: The Supreme Court needs to “reconsider” rulings on same-sex marriage and access to contraceptives.
In his concurring opinion Judge Clarence Thomas writes “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrable erroneous.””
The Griswold case is from the 60s, where the court overturned bans on access to contraceptives. Lawrence ended a ban on consensual sodomy, and Obergefell was the latest ruling from the court in 2015 that ended bans on same-sex marriage.
Lewis & Clark Professor Ben Gaskin says that puts the cross-hairs on all kinds of personal privacy issues.
“All those kinds of assumptions about privacy, autonomy, individualism are being questioned,” Gaskin said.
For LGBTQ advocates, like Pride Northwest director Debra Porta, the question feels like a threat.
“It’s scary,” Porta said. “But surprise is not on my list of reactions. I’m mad and I’m scared for our community. I’m scared for my wife and I.”
In the dissenting opinion, Justices Stephen Breyer, Elena Kagan and Sonia Sotamayor say that’s where the conservative majority is aiming to restrict.
“They are all part of the same constitutional fabric – protecting autonomous decision making over the most personal of life decisions,” read the dissenting opinion.
Thomas’ statement will likely open the door to legal challenges for same-sex marriage, says Lewis and Clarks Law Professor Jim Oleske. Oleske said it could come in a very similar playbook to how the Roe v Wade case was attacked.
“A state could pass a law, chipping away at the right to same sex marriage…it would work its way up through the system and the state…just like Mississippi did in today’s case, go to the Supreme Court,” Oleske said.
The overturning of Roe overturns what was considered precedent, even a super-precedent. A case like Obergefell was ruled on once by the Supreme Court. Roe was ruled originally in 1973 and then narrowly affirmed in 1992 leading many to consider it a super-precedent.
“We have seen that this current court especially is unwilling to bind itself to precedent,” Gaskin said.
Oleske adds “today’s court decided, no, that was grievously wrong from the beginning and can’t be salvaged.”
Oleske also described the “historical tradition” the majority of the court used in its justification for overturning Roe, and deciding another case earlier this week that grants ubiquitous access for carrying hand guns in public.
It essentially compared a ruling with the text of the constitution, if a right is not expressly portrayed in the constitution, the court may still deem it constititutional if the Court considers it part of the nation’s history and traditions.
“With today’s conservative super-majority on the court, they have said that deeply rooted in history and tradition is the test. And they applied that here,” Oleske said.
For Porta, she’s been in this fight for decades, and says she never took rights for abortion or marriage equality as a guarantee. She hopes it is a message for younger generations for how fragile some rights are.
“Because [overturning precedent] doesn’t happen too frequently, it’s easy for one generation to the next to lose sight of oh, by the way, these things can happen.”
Porta believes that in Thomas broadcasting his next move, it can be inspiration for her and other advocates.
“If nothing else, saying it out loud, will hopefully get people to pay attention and recognize the sort of far reaching implications of what’s happening.”