July 20, 2022

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Interracial Marriage May be Next After Roe V. Wade as Supreme Court Overturns

roe v wade same sex marriage

They worry that the overturning of Roe V. Wade by the Supreme Court on June 24 may jeopardize the constitutional right to interracial marriage.

When the Supreme Court of the United States overturned Roe v. Wade’s protection of federal abortion rights, Justice Clarence Thomas said the Court should “reconsider” its previous judgments protecting access to contraception, same-sex partnerships, and same-sex marriage as well.

Thomas suggested in a concurring opinion that the Court should reconsider the rights protected by the 14th Amendment’s due process clause. He mentions the important Griswold, Lawrence, and Obergefell judgments, which safeguard access to contraception, same-sex relationships, and same-sex marriage.

A state can’t take away someone’s “life, liberty, or property without due process of law,” as stated in the due process clause.

To safeguard “substantive rights” that aren’t enumerated in the Constitution, the Supreme Court has invoked this section in the past, citing arguments that these liberties can’t be violated. Thomas, on the other hand, contends that this interpretation of the sentence is incorrect.

A “demonstrated error” in any substantive due process decision requires us to “fix that error,” Thomas stated.

For the most part, however, the 14th Amendment’s protection for interracial marriage was absent from Thomas’ concurring opinion.

Other Court Justices Disagree with Thomas Opinion

roe v wade same sex marriage

According to Justice Brett Kavanaugh, the Court’s decision to overturn Roe v. Wade will not affect the precedent set by Loving, Obergefell, and Griswold, which he wrote in his own concurring opinion in opposition to Justice Clarence Thomas.

I stress what the Court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or throw doubt on those precedents,” Kavanaugh wrote in a statement.

There was no majority opinion, in this case, therefore neither Thomas’ nor Kavanaugh’s opinions are precedent-setting.

They warned that “no one should be confident that this majority is done with its work” in the process of dismantling earlier precedents, in their judgment.

Dissident Justice Samuel Alito reacted angrily, accusing his colleagues of insinuating that the Dobbs ruling would threaten other rights, like same-sex marriage and access to birth control.

Some legal experts, however, expressed concern that the Supreme Court may review the Loving decision in the future if the relevant instances are brought before them, based on the Court’s inconsistent opinions.

“What we observe today is that there is very little sacred in terms of privacy,” Michele Goodwin, a constitutional law professor at the University of California, Irvine, said to Insider.

Both Loving and Roe Affirm the Constitutional Right to Privacy

roe v wade same sex marriage

A white man named Richard Loving and a black woman named Mildred Jeter married in the District of Columbia in 1958, the first year that interracial marriage was authorized in the nation’s capital.

While in Virginia, the wedding couple was prosecuted for breaching the antimiscegenation law, which prohibited interracial marriages within the state of Virginia.

They were convicted and given a year in prison, but the term was suspended for 25 years if the Lovings left Virginia. Additionally, they were prohibited from entering the state as a couple.

Eventually, the Supreme Court heard the couple’s appeal, which was successful.

It was in June 1967 that the Supreme Court issued a historic civil-rights decision, Loving v. Virginia, which eliminated all race-based legal limitations on marriage in the United States. It was argued that the Equal Protection Clause of the 14th Amendment required “the most exacting scrutiny” of racial discrimination because it was “odious to a free people.”

There are no restrictions on an individual’s right to marry someone of a different race under the U.S. Constitution. Chief Justice Earl Warren said as much in an opinion piece he published at the time. It was thought that the freedom to marry was guaranteed by the right to privacy.

It was the due process provision of the 14th Amendment, which the Supreme Court said preserved “a woman’s qualified right to terminate her pregnancy” to foetal viability in the 1973 Roe decision.

Laws protecting same-sex relationships, such as Lawrence v. Texas, and same-sex marriage, such as Obergefell v. Hodges, were founded in part on the right to privacy, as were other important decisions in the LGBT civil rights movement.

With Roe Overturned, Some Experts Fear that Loving Could be at Risk

He told Insider he believes Thomas’ position on due clause precedents may be interpreted as a call to action for others to begin filing lawsuits that challenge Obergefell, Griswold, and Lawrence.

To rethink decisions that you’ve long considered illegitimate because they rely on the substantive due process clause, he’s trying to begin to shift the gears of the court system,” Brooks said.

No reference to Loving was made by Thomas in his conclusion, although Brooks acknowledged the Court may reexamine the precedent it created in a subsequent case. Thomas is married to Ginni Thomas, a multiracial woman.

He stated, “The logic goes all the way to destroying any right,” Brooks said.