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Laws banning sodomy, gay marriage on books in Michigan. Some fear what’s next.

Justice Clarence Thomas
Progressive groups fear that rights to contraception and gay marriage could be targeted now that the Supreme Court has overturned Roe v. Wade, the 1973 law that guaranteed abortion rights. (Official SCOTUS portrait of Justice Clarence Thomas)

June 30: Ban gay marriage, two Michigan GOP governor candidates say at debate
June 28: Abortion confusion reigns across Michigan days after Roe reversal

With the U.S Supreme Court overturning Friday the landmark case protecting abortion rights, LGBTQ organizations and others in Michigan say they fear their liberties are next.

“Is this going to be open season on established rights cases?” said Jay Kaplan, attorney for the American Civil Liberties Union Michigan’s LGBT Project.

Stoking the fears was a concurrent opinion by Justice Clarence Thomas who, while agreeing to overturn Roe v. Wade, also called for the court to “correct the error” in cases that used similar legal logic to uphold the right to contraception, same-sex sexual activity and same-sex marriage.

Related:

Indeed, Michigan still has laws on the books banning same-sex marriage and some sex acts, said Michigan Attorney General Dana Nessel.

The laws could go into effect if the U.S. Supreme Court overturns federal protection for them. Old laws in Michigan punish sodomy by up to 15 years in prison, while a state constitutional amendment, passed by voters in 2004, limited marriage to heterosexual couples

“Roe was the building block upon which many other important rulings stood and were held,” Nessel said. “I am very afraid that if those precedent-setting seminal cases involving the right to privacy are overturned, then we could be in real trouble here in Michigan.”

She called Thomas’ opinion a “call to action,” noting that it’s now a “probability” other laws will be reconsidered by the court.

Thomas wrote the court should revisit Obergefell v. Hodges, the 2015 decision that guaranteed marriage rights to same-sex couples, Griswold v. Connecticut, a 1965 case preserved rights for married couples to buy contraceptives, and Lawrence v. Texas, which ruled that bans on sodomy are unconstitutional in 2003. 

The court ruled 6-3 to uphold a Mississippi law that severely restricted abortion, but no other justices signed onto Thomas’ opinion.

Writing for the majority, Justice Samuel Alito, wrote the decision applies only to abortion and not cases that served as precedents to Roe. Justice Brett Kavanaugh wrote the decision “does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”

Three dissenting justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — were not convinced.

“The first problem with the majority’s account comes from (Thomas’) concurrence — which makes clear he is not with the program,” they wrote. “At least one Justice is planning to use the ticket of today’s decision again and again and again.”

Many across Michigan share the same fears. 

“This is an unprecedented action that the court has taken,” said Kaplan of the ACLU. “... They did it because they wanted to do it and that should make everyone concerned about the precedent from the United States Court.”

Erin Knott, executive director of Equality Michigan, an LGBTQ political advocacy group, said that despite knowing the ruling would overturn Roe v. Wade, it’s still “shocking and horrifying” and will impact the LGBTQ community. 

“Today’s ruling tested that the highest court in the land is determined to dictate social policy and strip equality from the books,” Knott told Bridge MIchigan on Friday.

Richard Friedman, a law professor at the University of Michigan Law School, said he suspects there is not enough support on the Supreme Court to overturn the cases that Thomas cited.

To challenge the 1965 Griswold case, Friedman said, a state would first have to enact a law banning contraception and then have some violate that law and challenge it. And with wide support for same-sex marriage, he said he is skeptical the court would overturn Obergefell. 

“There’s just too many who have a gay relative. Nobody got hurt (by gay marriage), they’re happy,” he said. “I think there’d be a lot of resistance (within the court) to overturn Obergefell.”

But University of Detroit-Mercy law professor Cara Cunningham Warren said the Thomas opinion, combined with the majority’s decision to overturn Roe, suggests a far more activist court willing to wade into the culture wars.

Just as no justice signed Thomas’ opinion, none signed Chief Justice John Roberts’, which called for judicial restraint, she said. Roberts voted to uphold the Mississippi abortion law decided in Friday’s ruling but he did not agree with overturning Roe.

Cunningham Warren said the decision alone shows a “court that is not constrained.”

The ruling, she said, is “literally just laying the foundation for whatever rights they want to go after next…It’s naked judicial activism.”

“Today it’s procuring an abortion but tomorrow it could be procuring contraception or procuring a marriage license,” Cunningham Warren said.

In a February debate, Matthew DePerno, the presumptive Republican nominee for attorney general in Michigan, said the Supreme Court should be not bar states from enacting laws, such as Connecticut’s 1879 ban on the use of contraception that led to the Griswold decision.

Grace Huizinga, the president of the Grand Rapids LGBTQ+ Health Consortium, said there is an illusion the decision stops at banning abortions but the damage of the decision “impacts the whole community.”

“It’s not just an issue for the LGBTQ community, it’s a community issue,” Huizinga said. “There is so much pressure on our vulnerable populations right now, but of course this is very distressing for the LGBTQ community.”

The LGBTQ community has made a lot of progress, but Huizinga said it is not stable progress because it is constantly threatened. This year, a record number of anti-LGBTQ bills aimed at limiting their access to healthcare and sports were introduced nationwide in state capitols.

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