OPINION: Why Same Sex Marriage Could NOT Be Left to the States

World War II Memorial, Washington DC
World War II Memorial, Washington DC

You’re worried. I can tell because you clicked on this article.

You’re scared because a leaked draft opinion suggested Roe v. Wade (1973) might be overturned by the Supreme Court.

Who knows? Maybe same-sex marriage, and the Obergefell v. Hodges (2015) case, might be their next target.

The conservative judges on the court seem to have a bone to pick with precedent, right? 50 years' worth in the case of Roe v. Wade. While Obergefell v. Hodges has yet to survive a decade…

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These are among the flags outside of the LGBTQ+ Center at Taylor Hall, from left to right: an asexual pride flag, a bisexual pride flag, a transgender pride flag and a lesbian pride flag.

However, overturning Obergefell v. Hodges would require such an infringement upon state’s rights and a mangling of legal precedent that a conservative justice wouldn’t dare take the risk, even if tempted to consider touching the sacred and much-lauded decision that for many defined President Barack Obama’s socially progressive second term.

A quick background: Jim Obergefell married John Arthur in Baltimore, where same-sex marriage was legal, shortly after the Supreme Court struck down the Defense of Marriage Act. In their home state of Ohio, it was not legal. John Arthur tragically died from complications due to ALS in 2013. Initially his death certificate listed him as married, but Ohio appealed a court decision and attempted to get it reissued stating he was single. Jim Obergefell fought this as a slap in the face to his husband's legacy, and he eventually won the legal battle before the Supreme Court.

Considering this, there are some important distinguishing characteristics between Obergefell v. Hodges and Roe v. Wade.

First of all, the illegalization of same-sex marriage by one state would necessarily infringe on the rights of another state.

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Jim Obergefell | Photo by Wikipedia

According to the so-called Full Faith and Credit Clause of the Fourteenth Amendment, states are required to recognize the “public acts, records and judicial proceedings of every other state.”

This is impossible under a state-by-state framework of recognizing or denying same-sex couples the right to marry.

While a couple may travel to another state in order to have a marriage performed and a legal certificate given, their marriage would almost certainly not be recognized in their home state. The result would be one state rendering “null and void” the legal proceedings of another, in violation of the Fourteenth Amendment.

Likewise, an individual should legally be able to travel to any other state and enjoy the equal protection of their laws without being subject to legal or criminal penalties in their home state, according to the Interstate Travel Clause of the Fourteenth Amendment

For example, it would be utterly ridiculous for Indiana legislators to propose a law that would make it illegal for a mechanic struggling with chronic pain to make the journey to Chicago every weekend to legally smoke marijuana. 

Furthermore, it would be ridiculous for a state legislature to suggest criminalizing the act of leaving the state to procure an abortion elsewhere. Which is why most conservative states seeking to limit abortion have instead sought to attack groups seeking to fund such ventures.

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Pro-Abortion Protester, Indianapolis Monument Square

This has angered abortion-rights groups, which claim overturning Roe v. Wade would have the worst impact on people of color and those without the means to travel to other states. Many Republicans object to this logic, suggesting it borders on eugenics. 

“I’ll just simply say that as a guy raised by a black woman in abject poverty, I am thankful to be here as a United States senator,” said Tim Scott, a Republican senator from South Carolina.

The Due Process Clause also backs up the legal precedent of Obergefell v. Hodges. It prohibits states from depriving their citizens of “life, liberty, or property” without “due process of law.”

Prohibiting same-sex marriage would deny same-sex couples the right to obtain all the economic and social benefits that come with marriage and refuse to recognize same-sex marriages obtained elsewhere without any due process.

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Tyron Garner (left) and John Lawrence (right)

The Supreme Court case Lawrence v. Texas (2003) had already deemed consensual same-sex intimate relations constitutionally protected. Therefore, states could not justify denying marriage licenses to same-sex couples without also denying them due process and equal protection. 

One might claim that the decision in Lawrence was partially based on the “right to privacy,” although in this case the right is between two consensual adults, and as such is not pitted against rights often considered more fundamental, such as that to life. 

Both the Roe and the Casey decisions even recognized that the abortion was “fundamentally different” from intimate sexual relations, contraception, and marriage, because it destroyed what they referred to as “fetal life,” as Justice Samuel Alito pointed out.

Abridging same-sex marriage clearly threatened a basic civil right. Not just for same-sex couples, but for anyone who the state arbitrarily decided was unworthy of marriage. For the longest time, similar reasoning saw states abridge the right of interracial couples to marry.

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The Loving Family | Photo by HISTORY

In Lovings v. Virginia (1967), the Supreme Court protected the right of interracial couples to marry and stated that there was no rational purpose to prevent them from doing so (as opposed to, for example, laws against incest which aim to prevent birth defects and other harm to children). 

Since there is no justifiable legal differentiation between same-sex marriage and opposite-sex marriage, it can claim to be part of the long history of a protected tradition in the United States. Therefore, it passes the legal precedent set in the Glucksberg v. Washington (1997) case, as referenced by Alito

Considering these precedents rooted in the Constitution, Obergefell v. Hodges seems to be on solid legal footing.  

On the other hand, for most of American history and that of common law, abortion had been illegal at least after “quickening,” an arbitrary date considered then to be around six weeks, defined as when the mother first feels her unborn child move (according to a now defunct Christian view, that this was when a baby received its soul).

Expectations on punishment varied widely but there was by no means widespread or official protection of abortion as a right, despite its surprisingly common occurrence in that era. As the medical community professionalized and science increased their understanding of fetal development, the post-quickening exception completely disappeared, and abortion was progressively criminalized until a few decades before Roe.

Likewise, the states are obviously not able to render “null and void” or criminalize abortions performed in another state or country. Overturning Roe v. Wade therefore would not allow states to infringe upon the rights of other states to keep abortion legal.

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Capt. Susan Struck (left) and Ruth Bader Ginsburg (right), who fought for the right to not have an abortion | Photo by Scary Mommy and Ron Sachs/CNP/Bettmann/Getty

Ruth Bader Ginsburg, former Supreme Court justice, feminist icon, and staunch abortion-rights activist, also expressed doubt on the legal reasoning behind the Roe v. Wade decision. She had been working on a defense for a similar case at the time which she believed would rest a more moderate defense of the woman’s right to choose on the Equal Protection Clause.

Roe isn’t really about women's choice, it’s about the doctor’s freedom to practice,” Ginsburg claimed, “[but] the one thing that conspicuously distinguishes women from men is that only women become pregnant.”

The majority opinion of Roe vs. Wade, in fact, suggested “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated.”

However, according to Alito, “a state’s regulation of abortion is not a sex-based classification… [and] the regulation of a medical procedure that only one sex can undergo does not trigger heightened Constitutional scrutiny unless the regulation is a ‘mere pretext designed to affect… discrimination,” citing the case Geduldig v. Aiello (1974). 

While it seems as though the Supreme Court may overturn Roe vs. Wade, perhaps a more moderate ruling by local courts or legislatures wouldn’t be such a bad thing. A ruling that wouldn’t “stop the momentum of change,” like Ginsburg feared, but bring about a new status quo which activists could use to build public support for (or against) abortion access.

Because right now, most Americans support some access to abortion. They claim to support Roe vs. Wade, yet they also support abortion restrictions that would violate it. This paints a picture of moderation not seen in the media.

Overall, if the Democratic Party wants any hope of passing a federal bill aimed at protecting abortion rights, then they too will need to swallow their pride and take the moderate route. That is, if they want any chance of gaining the support of enough Republican legislators in the closely divided Congress. 

While abortion seems to be on the ropes, it is abundantly clear that same-sex marriage isn’t going anywhere anytime soon. 

Jacob Stewart is a junior studying neuroscience and has been writing for the Campus Citizen since the Fall of 2021. He recently took on the position of Campus Editor and is looking forward to seeing new voices heard in the paper.


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