Today is the anniversary of the Supreme Court’s Roe v. Wade decision, which legalized abortion in the U.S. What does that have to do wit LGBT rights? As it turns out, a lot, whether you agree with the decision or not. Here are five reasons why marriage equality in particular owes a great deal to the 1973 ruling and reaction to it.
1. The right to privacy argument. The Supreme Court originally established the concept of right to privacy in a 1965 case involving Connecticut’s ban on birth control. At that time, the Court said that the right was implicit in the Constitution. But it was really the Roe v. Wade decision that solidified right to privacy as a legal construct, based on the guarantee of personal liberty in the Fourteenth Amendment. Since then, right to privacy has been a building block for LGBT legal successes, including Lawrence v. Texas, the Supreme Court case overturning sodomy laws. The majority’s reasoning in that case paved the way for the 2013 rulings for marriage equality–once sexual relationships were legal, how could marriage not be?
2. The fear of going too fast. The Supreme Court’s decision last year not to establish an absolute right to marriage equality owes a lot to the Roe v. Wade backlash. Apparently the justices felt that the Court could only go so far in expanding social justice out of fear that the nation wasn’t ready for it, just as it wasn’t ready for legal abortion. Supreme Court Justice Ruth Bader Ginsburg explicitly made this argument after the marriage ruling, saying that the Court was too bold with Roe v. Wade. By contrast, she said, it hit just the right balance on marriage equality. Of course, the momentum is moving so fast now, that it looks like the Court’s fear was misplaced. (See number four, below.)
3. Using the Court to supplement legislative approaches. It’s not just war that is politics by other means. It’s also Supreme Court cases. Here’s where marriage advocates learned a lesson from Roe. v. Wade. Supporters of a woman’s right to choose were only just getting a legislative strategy off the ground when the Court made its ruling, short circuiting any effort to build support over time for liberalizing abortion laws. By contrast, marriage equality advocates had a number of high-profile legislative successes under their belt. Moreover, they had a string of electoral successes to point to as well, underscoring that the public was already willing to embrace marriage equality. The timing was right to turn to the Court. That was much more debatable with Roe v. Wade.
4. One decision isn’t enough. If nothing else, the Supreme Court’s marriage decision have provided plenty of work for plenty of lawyers, as couples around the country challenge state bans on marriage. But it’s also clear that one set of rulings isn’t going to end the debate. The Supreme Court learned that, but it had the luxury of years, even decades before it had to revisit Roe. v. Wade. (It may revisit it yet again soon.) By contrast, it’s only a matter of time–perhaps two years at most–that the Court is going to have to wade back into the marriage debate fray. There are too many questions that the Court ducked the first time around, not the least of which is whether any state ban on gay marriage is constitutional. With federal judges in Oklahoma and Utah striking down the bans, the Court will have to clear up the confusion, and soon.
5. The right wing’s fight to the death. What would a Supreme Court decision be without the right wing vowing never to yield and to undo the Court’s injustice? For many culture warriors, abortion and gay rights may as well be one word. They will never give up. There is one major difference between the two issues, however. Marriage equality has seen a rapid and one-way rise in support over a relatively short period of time, especially among young people. Support for legalized abortion has been up and down over time, and in fact support for it has been dropping among younger people. Marriage equality is being integrated into society in a way that abortion has never been able to achieve. Unlike the right to choose, marriage equality is pretty much a done deal. In the end, that may be the biggest difference between the two issues.