The legal right not only to same-sex marriage but also to interracial marriage — which reaches even further back in American history — is now at risk with the U.S. Supreme Court’s overturning of Roe v. Wade and its profound upending of decades of basic rights, experts warn.
Vice President Kamala Harris, whose own marriage is interracial, said in remarks Friday that the decision “calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, the right to interracial marriage.”
The possibility of the loss of the right to marry someone of another race was ominously raised when Sen. Mike Braun (R-Ind.) said in March that such a right should be left up to the states (as abortion is now). Following backlash, he retracted his statement, claiming he had misunderstood the question. Such a decision would mean that an interracial couple legally married in one state could be arrested while visiting another.
The Supreme Court’s decision Friday compared the Roe ruling to cases such as Obergefell v. Hodges, which guaranteed the right to marriage equality; Loving v. Virginia, which protected interracial marriage; Griswold v. Connecticut, which established the right for married couples to use contraception; and Lawrence v. Texas, which prohibited states from banning sexual relations between people of the same sex.
Supreme Court Justice Clarence Thomas suggested Friday in a solo concurring opinion that the court should reexamine other rights protected under the due process clause of the 14th Amendment.
“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
Thomas sidestepped the Loving case, which, if overturned as Roe was, could threaten his own interracial marriage. That doesn’t mean other justices wouldn’t toss out protections, despite any protestations they might make. Some of the justices had previously claimed they believed that Roe v. Wade was settled law.
The bottom line is, “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.
Goodwin sees the ruling, and Thomas’s comments, as a dog whistle to the states to have at it.
“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,” she warned.
June 12 marked the 55th anniversary of the landmark Loving decision, which made interracial marriage legal across the U.S. A podcast by the American Civil Liberties Union warned in March, after a draft of the Roe opinion by Justice Samuel Alito emerged, that the “same legal reasoning” could be used to overturn Loving.
“To those who say Loving v. Virginia will never be overturned, be cautious and vigilant,” warned ACLU podcast host Kendall Ciesemier. “The United States has a long history of criminalizing, surveilling and controlling Black and brown families and the mixing of races.”
Based on the ruling overturning Roe, it’s difficult not to fear that other rights will be “subject to the same kind of judicial scrutiny and dismantling, such as contraceptive access, such as same-sex marriage, such as interracial marriage,” warned Goodwin, who was the guest on the podcast.