The Maine lawyer who successfully argued for same-sex couples’ right to marry before the U.S. Supreme Court in 2015 said that decision was correctly reached despite Justice Clarence Thomas saying otherwise late last month as the court rolled back abortion rights.
Despite expected legal challenges, that and other civil rights on which the court has previously ruled should be secure, Mary Bonauto said, and advocates like her are prepared to fight off those challenges.
Bonauto, who is the Portland-based civil rights project director of GLBTQ Legal Advocates & Defenders, known as GLAD, was one of three lawyers who argued on behalf of the plaintiffs in Obergefell v. Hodges, in which the Supreme Court ruled that state bans on same-sex marriage were unconstitutional.
The court made clear in that case that “to close off an institution as profoundly important as marriage, in terms of people’s ability to protect themselves and their families, would violate the equal protection commitment in the Constitution,” she said.
Her remarks in an interview with the Bangor Daily News came a week after the Supreme Court overturned Roe v. Wade, the landmark 1973 case that guaranteed the federal right to abortion, in a 6-3 decision. Justice Samuel Alito declared it “egregiously wrong” in his majority opinion.
In a concurring opinion, Thomas argued that the Supreme Court should also revisit three other monumental civil rights cases, including Obergefell.
“We should reconsider all of this Court’s substantive due process precedents, including Griswold [v. Connecticut], Lawrence [v. Texas], and Obergefell,” Thomas wrote. “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Griswold and Lawrence guaranteed the right to use contraceptives and to engage in same-sex relations under the 14th Amendment’s equal protection clause, respectively. Thomas dissented from the majority in both Lawrence and Obergefell when the court ruled on them in 2003 and 2015, respectively.
“I don’t think there’s any surprise that there are some people around the nation who would like to reverse these things,” Bonauto said, adding that Roe’s overturning laid out a “framework” for some people to challenge existing legal protections.
But while she expects legal challenges, Bonauto pointed toward the privileges and immunities clause of the 14th Amendment, which the U.S. ratified after the Civil War, as proof that the right to use contraceptives and the rights to same-sex marriage and same-sex intimacy were sound.
“The idea is, like in the Declaration of Independence, that we’re all entitled to life, liberty and the pursuit of happiness,” she said.
“The framers of the Fourteenth Amendment were really trying to say, ‘Those were great aspirations and we didn’t do it. We failed, and we had a civil war. And now we need to restore this idea that everyone who is here has basic rights.’”
In addition, she said, even rights that aren’t specifically spelled out in the Constitution are valid.
Overturning Griswold, Lawrence and Obergefell would upend the guarantee that all Americans are entitled to liberty and would force affected people into a kind of second-class citizenship, Bonauto said.
In addition, it would affect other liberties like interracial marriage, parents’ rights to direct their children’s upbringing and care, and people’s bodily integrity, like their right to not be sterilized for committing a petty crime, she said.
“You can’t just say, ‘Everybody’s qualified, except these people,’” Bonauto said. “We are right. And we are not going back. We are very prepared to fight.”