As the Supreme Court overturns Roe v. Wade, some experts fear interracial marriage may be the next target

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Local pro-choice activist Lisa King holds a sign in front of the U.S. Supreme Court in 2009
Local pro-choice activist Lisa King holds a sign in front of the U.S. Supreme Court in 2009Alex Wong/Getty Images
  • The Supreme Court overturned abortion rights established by Roe v. Wade on Friday, June 24.

  • Experts fear the decision could jeopardize other rulings, including those protecting interracial and same-sex marriages.

  • These rulings are similarly protected under the 14th Amendment's due process clause.

Experts fear the Supreme Court's ruling on June 24th to overturn Roe v. Wade could put the constitutional right to interracial marriage in jeopardy.

When the nation's highest court nullified federal abortion rights that had been secured under Roe, Justice Clarence Thomas expressed that the Court should also "reconsider" rulings that protect contraception access, same-sex-relationships, and same-sex marriage.

In a solo concurring opinion, Thomas argued the Court should reexamine what rights are protected under the due process clause of the 14th Amendment. He explicitly names the Court's landmark Griswold, Lawrence, and Obergefell decisions, which protect contraception access, same-sex relationships, and same-sex marriage.

The due process clause prohibits states from depriving Americans of "life, liberty, or property without the due process of law." In the past, the Court has used this clause to protect certain "substantive rights" that are not explicitly listed in the Constitution — such as the right to same-sex marriage — arguing that they are liberties that cannot be infringed upon. In his opinion, however, Thomas argues against this interpretation of the clause.

"Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents," Thomas wrote.

Notably, in his concurring opinion, Thomas stopped short of mentioning another ruling protected under the 14th Amendment: Loving v. Virginia, which protects interracial marriage.

Other Court justices disagree with Thomas' opinion.

In his own concurring opinion, Justice Brett Kavanaugh splits from Thomas, appearing to suggest that the Court's overturning of Roe will not affect the standings of past rulings, including Loving, Obergefell, and Griswold.

"I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents," Kavanaugh wrote.

Neither Thomas nor Kavanaugh's opinion were the Court's majority opinion, meaning they're not binding precedent.

The dissenting justices, Justices Breyer, Sotomayor, and Kagan, warned in their opinion that "no one should be confident that this majority is done with its work," in stripping away prior precedent.

Justice Samuel Alito struck back against the dissenters in the Court's majority opinion, accusing them of stoking "unfounded fear" that the Dobbs decision would imperil other rights, like same-sex marriage and contraception access.

Nevertheless, the Court's conflicting opinions worried some legal experts, who told Insider they fear the high court could challenge the Loving decision in the future if the proper cases come before them.

"What we see today is that there is very little that is sacred in terms of privacy," Michele Goodwin, a constitutional law professor at the University of California, Irvine, told Insider.

Both Loving and Roe affirm the constitutional right to privacy.

In 1958, two residents of Virginia, Mildred Jeter, a Black woman, and Richard Loving, a white man, were married in the District of Columbia, where interracial marriage was legal. When the newlyweds returned to Virginia, they were charged with violating the state's antimiscegenation statute, which banned interracial marriages in the state.

The Lovings were found guilty and sentenced to a year in jail, though their sentence was suspended on the condition that they move away from Virginia for 25 years. They were also barred from traveling to the state as a pair.

The couple appealed their conviction, which eventually made its way to the Supreme Court.

In a landmark civil rights decision in June 1967, the Court issued a unanimous decision in the case Loving v. Virginia that ended all race-based legal restrictions on marriage in the US. It held that racial distinctions were "odious to a free people" and were subject to "the most rigid scrutiny" under the 14th Amendment's Equal Protection Clause.

"Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State," Chief Justice Earl Warren wrote at the time. The right to marry was considered to be protected under the right to privacy.

When Roe was decided in 1973, the Supreme Court ruled it was the right to privacy, found in the due process clause of the 14th Amendment, that protected "a woman's qualified right to terminate her pregnancy" until fetal viability.

Several landmark rulings in the LGTBQ+ civil rights movement — including Lawrence v. Texas, which protects same-sex relationships, and Obergefell v. Hodges, which protects same-sex marriage — are similarly built on the right to privacy.

With Roe overturned, some experts fear that Loving could be at risk.

Rakim Brooks, an appellate attorney and the president of the Alliance for Justice, told Insider he believes Thomas' opinion on due clause precedents may be seen as a call-to-action for others to begin filing cases that challenge Obergefell, Griswold, and Lawrence.

"He's trying to begin to turn the machinery of the court system to reconsider precedents that you've long since thought are illegitimate because they rely on the substantive due process clause," Brooks said.

Thomas did not expressly mention the Loving decision in his opinion as a case to be overturned, but Brooks noted the Court could still revisit the precedents set by it in a future case. Thomas, himself, is in an interracial marriage with his wife, Ginni Thomas.

"As the dissenters pointed out, the logic takes you all the way to [eliminating] any right," Brooks said.

Similarly, Goodwin said that by overturning Roe, the Supreme Court has sent a "dog whistle" to states.

"The Supreme Court doesn't have to engage itself with dismantling protections for interracial marriage. By sending the signal with Roe and by Justice Thomas undergirding that signal, it's now left to the county clerks," Goodwin said.

Given the rise in white nationalistic sentiment in the US, Goodwin said she is afraid that "all it takes" is for those holding extreme views to become those county clerks making decisions that can undercut fundamental rights, like interracial marriage.

"It's a cruel and painful joke," Goodwin said.

Brooks, who previously clerked for Kavanaugh, told Insider he believes his former boss could still vote in favor of repealing Loving if given the opportunity, despite what he wrote in his concurrence. He pointed to Kavanaugh's time before the Senate Judiciary Committee where the justice said that Roe v. Wade was "an important precedent" before voting to overturn it years later.

"To be clear, the Court has said there are guardrails that protect other areas of intimacy and privacy, such as contraception and marriage," Goodwin said. "These are the same justices that, during their confirmation hearings, led the Senate to believe that they would respect the precedents and precedential value of Roe v. Wade. They have done an about-face."

Read the original article on Insider