Supreme Court Justice Clarence Thomas has a to-do list, which is bad news for LGBTQ+ people, as well as for any American who believes in a right to privacy.
In a concurring opinion written for the recent Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade, Thomas wrote that the Supreme Court “should reconsider all of [its] substantive due process precedents, including Griswold, Lawrence, and Obergefell,” essentially laying out what he would like to see happen next. Those ominous words were an open invitation for further legal challenges to contraceptive use, consensual sexual activity, and same-sex marriage, respectively — and we can expect conservatives to anwer the call.
It would, of course, be hugely unpopular for SCOTUS to undo nationwide marriage equality and allow sodomy bans to go back into effect, but it was also unpopular for them to overturn Roe, with approximately two-thirds of Americans opposing the decision, according to CNN polling. In other words, “unlikely” doesn’t exist anymore; if the current SCOTUS majority can do something terrible, we should expect and prepare for them to do it.
To that end, Them spoke with historian Wesley G. Phelps, an associate professor at the University of North Texas, about the Supreme Court’s track record on LGBTQ+ rights, and what it might look like for those decisions to get rolled back. Phelps, whose book Before Lawrence v. Texas: The Making of a Queer Social Movement, comes out next spring, notes that the 2003 decision in his book’s title was “the foundation” for virtually every LGBTQ+ legal victory in the 21st century, which is worrisome because it used Roe v. Wade as precedent to determine that sodomy bans are unconstitutional.
Below, Phelps helps make sense of what might happen if Obergefell, Lawrence, and Griswold are indeed up next.
Do you feel like the overturning of Roe v. Wade in Dobbs could have consequences for the 2015 Obergefell same-sex marriage decision?
From the outset, I would want to point out that we shouldn’t lose sight of just how devastating the Dobbs decision is for reproductive rights. But seeing how the Court ruled in Dobbs, I do think that there is a potential that it might move in a way that would overturn some of these other decisions that involve queer rights, like Obergefell, like Lawrence v. Texas, perhaps even Bostock.
If something happens to Obergefell, do you think it’s more likely to be a complete reversal or, say, a returning of the issue to the states?
Well, I think if the Court did something with Obergefell, it would be based on the same reasoning as Dobbs: that this is a decision that should be left up to the democratic process. And so, in that case, it would be turned back over to states, many of which have constitutional amendments defining marriage as between one man and one woman.
I think that Obergefell is interesting because the decision is partly based on equal protection. So, with Dobbs, the Supreme Court overturned Roe v. Wade based on the idea that the Constitution does not explicitly protect the right to an abortion. They would have to go to a greater length to argue that prohibiting certain Americans from getting married is not actually a violation of the Equal Protection Clause of the 14th Amendment. I’m not saying that they can’t do that, but I do think it would require much more from them than we saw in Dobbs.
So, similar to the “trigger laws” or “trigger bans” that were in place around abortion, there are states that have been preparing for Obergefell to fall?
Yeah, that’s true. There are constitutional amendments on the books. There are statutes on the books prohibiting same-sex marriage. So yes, there are many states that are well-prepared for Obergefell being overturned.
What would happen to people who are already married in those states?
For people who are not yet married, this would, of course, mean that they wouldn’t be able to get legally married in their state. But I don’t think there’s any way to know what would happen to people who are already legally married. That’s going to create so much chaos that I wonder if that might be kind of a brake on the Supreme Court, that they might consider the chaos that’s going to be unleashed by overturning Obergefell. Their marriages have already been recognized by those states, and my assumption would be that they would have to continue to be recognized.
But seeing how far states are willing to go to reinstate bans on abortion, I wouldn’t put it past them to come up with creative ways to deny couples who are already married their constitutional rights.
It is an interesting predicament because Dobbs obviously creates a lot of chaos, but it centers on a medical procedure versus a legal status between persons that affects taxes and—
—inheritance. I mean, medical benefits. There would be so many reverberations of the Court overturning Obergefell. I would think that they would be conscious of that.
As a historian, do you feel like we have kind of a short memory? A rising generation of queer youth who came of age post-Obergefell may not remember what it was like for marriage rights to vary by state…
I think there is a kind of historical amnesia. There’s also, I think, a sense that these victories, things like Obergefell, are set in stone, that they’re untouchable, although I think there is a generation of younger queer Americans who are realizing that no, that’s not the case, and that these rulings, in fact, have to be preserved. But I do think there are a lot of gay Americans who have taken these rights for granted and were very shocked to read that Clarence Thomas is talking about his support of overturning these previous decisions.
People — at least younger people — are more familiar with Obergefell than they are with Lawrence. How important was Lawrence for queer legal rights and advocacy in the 21st century?
Lawrence v. Texas is the foundation for almost every single victory for the queer rights movement that followed it. It would be completely inconceivable that we would get the Obergefell decision had same-sex relationships still been illegal in 13 states. It would be completely unthinkable that we would see the repeal of Don’t Ask, Don’t Tell had gay and lesbian Americans still been criminalized for their sexual relationships in 13 states. I think it’s impossible to imagine a world where the [2013] Windsor [same-sex marriage] decision comes out. Certainly it would be difficult to imagine that Bostock [employment discrimination] decision had gays and lesbians still been criminalized in 13 states, because as long as their sexual relationships were criminalized, they could be discriminated against in a multitude of ways.
So Lawrence v. Texas really lays the groundwork for almost all of these 21st-century achievements. Decriminalizing gay and lesbian relationships was an essential component in moving forward. And I think that’s what makes Lawrence v. Texas so important, so critical. And I think Lawrence might be more vulnerable to being overturned than Obergefell, in light of the Dobbs decision.
Because it’s not based on equal protection?
That’s right. It’s based only on privacy. Just like Roe v. Wade. And in fact, Lawrence v. Texas and the many unsuccessful cases against state sodomy laws that preceded Lawrence v. Texas almost all use Roe v. Wade in their argument about privacy and bodily integrity. So if the Court finds that the constitutional right of privacy does not protect a woman’s right to seek an abortion as part of medical care, then I don’t think it’s as much of a leap to think that they would also find that the constitutional right of privacy doesn’t really protect sexual conduct that the democratically elected legislature of a state finds that they want to ban for whatever reason.
Does that mean we could end up in a situation where same-sex marriage is legal, but gay sex is illegal?
That would be weird, right? Yeah. That would be very, very odd. Of course, I think if the Court did overturn Lawrence v. Texas, then probably Obergefell would have to fall at that point. I mean, so much of Anthony Kennedy’s majority opinion in Obergefell draws from his majority opinion in Lawrence v. Texas.
And similarly, there are states that still have sodomy bans on the books, right?
Yeah. And Texas is one of those. The state still has Section 21.06 on the books. And there have been legislators here in Texas, and other public officials, who say if Lawrence v. Texas is overturned, the law is still there and will become enforceable.
Historically speaking, what does an era look like when people can be arrested for sodomy?
Gays and lesbians have lived through that. It’s not that same-sex couples were being arrested in their bedrooms all that often, Lawrence v. Texas aside. John Lawrence and Tyron Garner actually were arrested in the privacy of John Lawrence’s bedroom, which is one of the things that made that case so compelling. But for most gays and lesbians, it didn’t happen like that. They were often targeted in a discriminatory way by public lewdness statutes.
Most of the people who were arrested in the ’70s and ’80s for public lewdness were gay men. But it extended even further than that. The Texas sodomy law and sodomy laws in other states provided a rationale for discriminating against gay and lesbian Americans in a number of ways. There were employers who wouldn’t hire gay and lesbian employees because, according to the criminal code, they were habitual violators of the law.
There’s evidence of people being discriminated against in housing. There is police harassment. People were discriminated against in the administration of public assistance, because they were gay. And all of that was justified by this law on the books that made their sexual relationships criminal. As long as they had that stigma of criminality, it was difficult to argue that they deserved equal rights and equal protection.
That would be the real danger if Lawrence v. Texas were overturned and states like Texas started enforcing their sodomy laws again: It’s not that police would be banging down the doors of queer people, arresting them for having sex inside their homes. It’s more that the rationale for rampant discrimination against them would return.
One interesting wrench in all of this is Lawrence relies on a right to privacy, but a 2020 Supreme Court decision — Bostock v. Clayon County — relied on equal protection and established that you can’t discriminate based on sexual orientation or gender identity in the workplace.
Bostock is a really interesting component of this conversation because Bostock, of course, relies on an interpretation of federal law, of the Civil Rights Act of 1964, Title VII, which prohibits discrimination based on sex. That majority opinion, written by Neil Gorsuch, is a fascinating document to read because here’s this rather conservative member of the Court arguing that this prohibition on sex discrimination protects gay, lesbian, and transgender Americans.
So the use of a federal law in that way seems to be pretty secure except if you imagine this world where same-sex sexual relationships are criminalized again. You could see an argument being made that it’s not okay to discriminate based on sex, but it is okay to discriminate based on criminality, right, based on criminal status. And if it’s determined that someone is a habitual violator of state law, you could refuse to hire them or fire them based on that, rather than based on sex, as Gorsuch laid it out in the Bostock decision. Yes, that would be a bizarre situation and, I think, really open to some kind of fantastical legal arguments.
The last of the cases that was on Clarence Thomas’s to-do list was, shockingly, the 1965 case Griswold v. Connecticut, which ruled that married couples could use contraception without government interference. Contraceptive use is fairly universal among Americans who have sex…
Yeah, I don’t think there would be much public support for overturning a decision like Griswold, but there’s not much public support for overturning Roe, and that happened. All of the polls show that most Americans agree with the reasoning behind Roe v. Wade. So yeah, it absolutely could happen. That would be another one where the Court would probably rule there’s no constitutional right to contraception, so if the state wants to outlaw it, that’s fine. And as Clarence Thomas would probably argue, if someone wants to use contraception, and they live in a state that makes that illegal, they should simply vote with their feet and move to a state that allows contraception, which is, of course, one of those abstract legal arguments that has no basis in reality for most people.
It feels like for a long time on cases like Roe, Griswold, and Obergefell that the Supreme Court was more or less tracking American public sentiment or public opinion — maybe in some cases a few years behind, in others a few years ahead. Do you feel like we’re entering an era now where the Court will be radically out of step and undermine its own credibility?
Well, I think they are with Dobbs, and they know that. If you read the majority opinion in Dobbs, paragraphs are devoted to explaining how the Court shouldn’t worry about how these decisions are going to be received by a majority of Americans, that they have this duty to rule on the Constitution as they read it, and they shouldn’t be influenced by all of these outside factors. So they know very well that this decision is out of step with the majority of Americans.
Do you think that there’s any braking mechanism, or do you think that that is kind of an open declaration: “Watch out. We no longer care what you think”?
I don’t know about that. I think the more out of step they get with the majority, I think the stronger calls will be for some kind of judicial reform. This idea of enlarging the Supreme Court that was tossed around quite a bit last year, I could see support for that building. There are calls now, which are pretty much on the fringe, for impeaching Supreme Court justices for misleading Congress, misleading the Senate during their confirmation hearings. Those are fringe right now, but the more the Supreme Court gets out of step with the majority, you could see support building up for those kinds of measures, too.
It’s hard to predict what could happen. We know that John Roberts is very concerned about it. So maybe he tries to lead the Court in a direction that’s more in line with the majority. I don’t know.
I think that uncertainty is a thing that a lot of people are dealing with right now. It’s a difficult space to be in, but it seems like it’s the only one we have.
This is where we are, and we have to deal with reality. And I think people who are interested in preserving the rights and freedoms of queer Americans and all Americans have to realize that these achievements took effort, and it will require effort to preserve those achievements. If we want to keep these landmark decisions around, then we’re going to have to organize and mobilize to keep them.
This interview has been condensed and edited.
Before Lawrence v. Texas: The Making of a Queer Social Movement will be available from University of Texas Press in February 2023.
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