Will Supreme Court outlaw same-sex marriage? California advocates see peril in abortion ruling

California elected officials and same-sex marriage advocates, reacting to Friday’s Supreme Court ruling striking down abortion rights, warned that the court might outlaw gay marriages as well.

“The door will be opened to undermine all of those rights,” Senate President Toni Atkins told reporters soon after the court overturned Roe v. Wade, giving states the authority to ban abortion.

“This is a call to action,” said Atkins, D-San Diego, who is in a same-sex marriage.

Added Assemblyman Evan Low, D-Campbell, chair of the Legislature’s LGBT Caucus: “It’s clear what the next line of attack is.”

Their warnings were prompted by a line in Justice Clarence Thomas’ concurring opinion, suggesting the court should re-examine landmark rulings that legalized same-sex marriage and contraceptives, and overturned a Texas anti-sodomy law.

Justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Thomas wrote, referring to the three previous decisions.

His fellow conservatives, in their majority opinion, said “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Thomas directly quoted that line in his opinion.

But the court’s three liberals, in their written dissent, said Thomas intends to overturn the other decisions as well: “At least one Justice is planning to use the ticket of today’s decision again and again and again,” wrote Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.

And California Gov. Gavin Newsom — who legalized same-sex marriage in 2004, when he was mayor of San Francisco — described Thomas’ words as chilling.

“The worst-case scenario, my worst nightmare, never thought I’d see,” Newsom said at a Capitol press conference.

On the other hand, same-sex marriage advocate Tony Hoang said he doesn’t sense an “immediate risk” from the Supreme Court.

Hoang, the executive director of Equality California, noted that none of the other conservative justices echoed Thomas’ suggestion that the court should take a fresh look at same-sex marriage.

Friday’s abortion decision “does not in fact undermine marriage equality,” Hoang said, but his organization will continue to monitor the issue.

Atkins said the Legislature will examine whether California should enact some form of constitutional amendment in support of LGBT rights — along the lines of the proposed amendment backing abortion rights in California. Gov. Gavin Newsom and legislative leaders have introduced a bill that would place an abortion-rights constitutional amendment on the November ballot.

The abortion ruling “is a danger and an attack on all people,” Low said. “The LGBT community is not immune.”

It’s unclear how a constitutional amendment on marriage equality would fare at the ballot box. In 2008, California voters approved Proposition 8, which inserted a ban on same-sex marriage into the state Constitution. Two years later, U.S. District Judge Vaughn Walker ruled that Proposition 8 itself was unconstitutional.

The issue appeared to be settled once and for all when the U.S. Supreme Court ruled in the Obergefell case that same-sex marriage was a constitutional right.

The ruling was issued seven years ago Sunday. Now Thomas’ opinion on the abortion issue calls into question the right to same-sex marriage — “these basic fundamentals that we thought were litigated,” Low said. “This definitely opens the door, without question.”

This story was originally published June 24, 2022 at 11:38 AM.