Leaked Supreme Court abortion draft raises fears for future of gay marriage, LGBTQ rights

Standing at the top of Clingmans Dome in the Great Smoky Mountains, Mario Oranday waited until his partner, Andrew Baumgarten, surveyed the endless tree-lined hills before kneeling down and reaching for the ring he had been carefully carrying. 

He had asked a nearby couple to film his proposal, and Baumgarten’s resounding “Yes” was forever captured on film. 

Later, in informing his family, Oranday’s father and grandfather spoke about a leaked draft of a U.S. Supreme Court decision overturning Roe v. Wade by the conservative-majority. 

Oranday doesn’t know if they were trying to scare him or were concerned about his future, but the implications of the draft spread like wildfire among Oranday’s LGBTQ community.

The leaked Supreme Court decision, should it become final, would directly impact access to abortions, but legal observers say it could also have wider repercussions since it hints that a majority on the court interprets the U.S. Constitution as not including a right to privacy – a right that has served as the basis for same-sex marriage and access to contraception.

The Supreme Court confirmed the authenticity of the draft but has yet to issue a final ruling. Chief Justice John Roberts has launched an investigation into the source of the leak.  

Oranday and Baumgarten had planned to save money for a year and invite friends and family to an elaborate wedding. Now they considered running to city hall and getting marriage licenses as quickly as possible. 

“Gay marriage only became legal in the Obama era, which is not that long ago, and if they can do that with Roe, imagine what they can do to us,” said Oranday. 

Since the draft was leaked, same-sex couples have rushed to Eric Patton, an ordained minister, for last-minute marriages. Of the four he’s officiated, only one was planned beforehand.

“It’s on everybody’s mind right now. And if anybody has a bigger wedding planned in the future, I’ve been recommending everyone get their licenses and certificates while we know that they still can,” said Patton, adding that he has another two scheduled this summer. 

One couple asked him to include Justice Anthony Kennedy’s landmark decision in Obergefell v. Hodges, which ruled that the right to marry is guaranteed to same-sex couples. Justice Clarence Thomas and Samuel A. Alito, who support overturning Roe, also opposed same-sex marriage. Alito wrote in his dissenting opinion that same-sex marriage should be left up to the state.  

Tennessee has also passed several laws restricting the rights of members of the LGBTQ community in recent years.

In April, Gov. Bill Lee signed legislation banning transgender athletes from participating in female college sports. Last year, Lee signed signed a bill forcing student athletes to prove their sex matched what is listed on their original birth certificate. He signed another requiring businesses that allow transgender indivduals to use restrooms of their choice to post notices. 

Tennessee also allows private child-placing agencies to discriminate against couples based on their religious views. In January, a Knoxville couple sued the Tennessee Department of Children’s Services after a Christian-based adoption agency denied service because they are Jewish. 

“If they’re going to throw every decision back to the state like we saw they’re trying to do in the leaked decision, Tennessee LGBTQ couples are in trouble,” said Patton. 

Conservative republicans are already discussing going after other constitutional rights to privacy, said Abby Rubenfeld, an attorney at Rubenfeld Law Office who acted as co-counsel for several plaintiffs in the Obergefell case.

Which is ridiculous, said Rubenfeld.

“It’s ridiculous to say that the word ‘abortion’ is not in the constitution. The word ‘women’ is not in the constitution. That’s not how we determine rights,” she said. 

“The issue is the fundamental right to privacy, which is implicit and inherent in the constitution. No, it doesn’t mention that word, but by implications and everything the constitution does, there’s a right to privacy,” she added. 

During the Trump Administration, three conservative judges were appointed to the Supreme Court, creating a conservative supermajority. The three justices – Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch– had all spoken of Roe as a precedent-setting case during their confirmation hearings, but avoided definitive stances. 

These judges have proven to be “extremely partisan and extremely political,” said Rubenfeld.

“None of them should be on there, and all of them are basing this on political beliefs,” she said, adding that Kavanaugh, Barrett and Gorsuch were rushed into their positions without proper investigations.

“This is not a neutral Supreme Court. This is a Supreme Court where the majority wants to impose their own conservative beliefs and take our country back to, not even 1950. They want to go back to 1850,” she said. 

If Roe is overturned, other decisions based on privacy could be next, such as interracial marriage and access to birth control, legal observers said.

Across the country, conservative lawmakers are already looking into restricting certain types of emergency contraception and intrauterine devices, such as IUDs. In Louisiana legislators are considering classifying abortion as a homicide, and Texas Republicans spoke of passing measures to prevent women from seeking abortions elsewhere. 

But they stand in contrast to public opinion, according to the Pew Research Center. According to one of its surveys, 19% of adults support legal abortion in all cases; 71% support having mostly legal or mostly illegal abortions with exceptions; and only 8% support making abortions illegal in all cases. 

Once the right to privacy is overruled and the government can regulate everything about someone’s life, anything is on the table, said Rubenfeld.

“This decision is frightening. It’s really so broad. Alito, he mentions that (marriage equality) case in particular, and conservative Republicans are already talking about using this decision to overturn decades and decades of case laws to the right to privacy,” she said. 

Tennessee’s General Assembly doesn’t go back in session until next year, giving liberal cities time to prepare, she added. 

In the meantime, Oranday and Baumgarten have yet to make any final decisions on whether they will rush to get married, or eventually leave Tennessee.

“I love Nashville. I love my friends and I love my community. It’s given me a sense of belonging,” said Oranday. “We worked hard to call this our home so why should we give that away because of some asshole.”

“I’ll only stay in Tennessee for my job to help provide for Mario,” said Baumgarten. 

While they ponder their future, the couple holds on to each other tightly. Baumgarten wears his engagement ring proudly, and Oranday carries his on a silver chain. 

This story was first published by Tennessee Lookout, part of the States Newsroom  network of news bureaus that includes Louisiana Illuminator.