Roe v. Wade looming, got a new sense of urgency
A shadow. A cloud. A distant rumble of thunder.
The weather couldn’t have been better for New Jersey’s 30th annual LGBTQ+ Pride celebration at Asbury Park on June 5.
And yet, in this Pride month, there was something in the air.
“It definitely filtered into the conversation,” said Rick Kavin, president of the Highland Park-based Pride Center of New Jersey, which was in Asbury over the weekend.
People were delighted, of course, to be back to celebrate after two years of confinement. “It was like going back to basics,” Kavin said.
But coming on the heels of a leaked Supreme Court document that appeared to suggest a new assault, not only on abortion rights, but also potentially on marriage equality and other gay-adjacent issues, the Pride month 2022 – for all its glitz, glamor and high spirits – is not without a certain ominous undertone.
“Everyone was happy to see each other,” he said. “But there was a conversation about what was happening nationally, particularly with Roe v. Wade and how it might affect our community.”
Worrisome developments in the Supreme Court, associated with “don’t say gay” bills in places like Florida and Alabama, book bans, and anti-trans legislation making its way through many state legislatures , is the spectrum at the party.
“People are anxious,” said CJ Prince, executive director of Maplewood-based North Jersey Pride.
Fear doesn’t dampen enthusiasm, she says. “If anything, it makes people more excited, enthusiastic and determined. We will protest and celebrate. These things are not mutually exclusive.”
Pride and Prejudice
This may be a change from past years – when Pride Month was more like a victory lap.
So, so fast! First civil unions (Vermont, 2000), then repeal of Don’t Ask Don’t Tell (2011), then full marriage equality (2015), first national LGBTQ+ landmark (Stonewall, 2016) , the legalization of homosexuality adoption (2017) and the current discussion on the rights of trans people.
And everywhere, the increased visibility of the community in films, television, sports, politics, entertainment. On the one hand, it’s been a steady stream of wins.
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But if there’s one thing the LGBTQ+ community knows, it’s that with progress inevitably comes backlash.
“The LGBT community is no stranger to this kind of thing,” said Gordon Sauer, Affiliate Leader of SAGE (Services & Advocacy for LGBT Elders) Jersey City, who is also the President of GAAMC (Gay Activist Alliance in Morris County).
“Throughout our history we’ve had challenges like this,” Sauer said. “We fought against that back then, we worked to get the rights that we have now. The way I look at it – and a lot of people do – that’s really just one more reason for us to ‘be present and present.’
Young LGBTQ+ Americans, who may have barely heard of “the closet,” would do well to turn to community elders later. They have fought this fight before.
“I have a 13-year-old daughter, and she barely remembers a time when we couldn’t get married,” Prince said. “We know, those of us who are community elders, that there are always setbacks in the march to equality, but we have to keep moving forward.”
It’s been true since June 1969 – when an uprising against the police at the Stonewall Inn in New York sparked the modern gay rights movement and started the tradition of June Pride Month.
“Pride started with riots,” Prince said. “And I’m fine going back to our roots.”
Letter of the law
The Supreme Court’s rightward shift is particularly troubling for Kavin, a constitutional scholar who teaches courses titled “Law and Politics” and “LGBTQ+ Politics in America” at Rutgers. More than anyone, he knows the vulnerable foundations on which most of these new rights rest.
“I’m quite worried, I have to be honest,” he said. “I am much more worried than a year ago.”
The shock waves of early May, when a leaked draft Supreme Court opinion appeared to lay out a strategy to overturn Roe v. Wade’s 1973 which granted the legal right to abortion, are still being felt.
A question of women’s rights, of course. And many members of the LGBTQ+ community would, as a matter of principle, be with the idea that the state doesn’t have to dictate what people do with their bodies. “The Roe thing is terrifying on its own,” Prince said.
But it also has a direct impact on members of the LGBTQ+ community.
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The “quirky” legal argument advanced by Judge Samuel Alito in the leaked document – it must be emphasized that this is a draft, not a definitive opinion – is that the right to abortion is not not implicit in the due process clause of the Fourteenth Amendment, as Roe had argued. Nor is it deeply rooted in the country’s history.
The same argument could also be used to overturn marriage equality, interracial marriage, access to contraception, private sexual activity of any kind – almost any other right not specifically guaranteed by the Constitution or the Bill of Rights.
Not, Alito insists, what he is looking for.
“Nothing in this notice should be construed as casting doubt on our precedents that do not relate to abortion,” he wrote. A Supreme Court anti-abortion ruling, he said, would have no implications for marriage equality or any other issue. Abortion is “unique” in that it involves a threat to “potential life”.
Yet the logic of his argument suggests that he is anything but unique. And many in the LGBTQ+ community aren’t inclined to take his word for it.
They consider it inevitable that – probably sooner rather than later – conservatives emboldened by Roe’s overthrow would launch a test case to overturn same-sex marriage.
“The LGBT community is extremely concerned about this, and we’re doing everything we can to be aware of any challenges to marriage equality,” Sauer said. “Of course we talk about it.”
If it happened? Probably, like abortion, the issue of marriage equality would fall to the states. Married couples in one state would be single in others — with all that entails for government benefits, adoption rights, hospital visits, and basic human dignity.
“We are very lucky to be where we are in New Jersey, with a pretty strong support system for LGBTQ residents and a very supportive governor,” Kavin said. “People in other places don’t have these protections.”
Why should abortion, marriage equality and other established laws potentially be in the crosshairs right now? This, Kavin said, goes back to a fundamental case from 48 years ago.
Griswold v. Connecticut, the 1965 decision that granted couples the legal right to contraception was a landmark in terms of privacy rights.
From this flowed many subsequent rulings that reshaped modern America – including Roe v. Wade (1973), Lawrence v. Texas (2003), which held that anti-sodomy laws were unconstitutional, and Obergefell v. Hodges (2015) which guarantees the right to marriage to same-sex couples.
But the Griswold decision, Kavin said, was actually based on a legal patchwork.
“There was no real constitutional hook to hang this on,” he said. “There is no right to privacy in the constitution.”
The majority, he said, concocted what they called a right to privacy, based on elements of the Bill of Rights.
Since the first amendment, freedom of speech. From the Third Amendment – against quartering soldiers – the sanctity of the home. From the fourth amendment, the prohibition of “searches and seizures”. Of the Ninth Amendment, that existing constitutional rights do not imply that other rights do not exist. And of the Fourteenth Amendment, that no law can “abbreviate the privileges and/or immunities” of American citizens.
It is this logic that is attacked by the originalists of the Supreme Court. All such decisions made on this basis are questionable, they say.
“They say the law has been misinterpreted and that’s not the basis on which we should decide these cases,” Kavin said.
The implication: Apart from these rights guaranteed by the Bill of Rights and its amendments, nothing is settled. Slavery cannot return (Thirteenth Amendment). Women cannot be denied the right to vote (Nineteenth Amendment). But many other things would seem like fair game.
“It definitely brings back the states rights argument,” Kavin said. “You could anticipate individual states doing different things with marriage, for example.”
How to prevent this? This might – the logic of the originalists – require a constitutional amendment. This could be the next fight.
“I know it’s a tall order,” Prince said. “But we have marched, protested and celebrated in the face of adversity since Stonewall, and we will continue to do so until we have permanent equal rights for every member of the LGBTQ community.”
A family matter
If the Supreme Court overturned Obergefell v. Hodges, she could count without the American public.
Beginning in the 2010s, opinions changed, with surprising rapidity, on the issue of marriage equality. Since 2015 – seven years – it has been the law of the land.
Married same-sex couples have become integrated, by the hundreds of thousands, into the traditional American family unit. Steve and his husband, Eileen and his wife, are the guests at the Thanksgiving table, the bearers of Christmas presents for the children.
If the Supreme Court were to overturn Obergefell, it could face outrage, not just from the LGBTQ+ community, but from millions of people of all stripes who don’t want their families broken up.
“If the Supreme Court comes after the wedding, I think Washington would need more square footage to accommodate the protests,” Prince said.
Jim Beckerman is an entertainment and culture reporter for NorthJersey.com. For unlimited access to its insightful reports on how you spend your free time, please subscribe or activate your digital account today.
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