Codifying Sexual Privacy Rights

Today on TAP: It’s time for Democrats in Congress to protect past landmark decisions from the current lunatic Supreme Court—and to force Republicans in Congress to take awkward votes.

by

Clarence Thomas’s all-too-candid concurring opinion in the Dobbs ruling overturning Roe v. Wade suggests that the Court should go further and reverse three landmark decisions on privacy. These were Lawrence v. Texas, a 2003 ruling by a 6-3 vote establishing that homosexual acts are not a crime; Obergefell v. Hodges legalizing marriage equality; and even Griswold v. Connecticut legalizing birth control. Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

Needless to say, any such rulings, though at the fringes of the Supreme Court (for now), would be monumentally unpopular with the broad American public. Acceptance of homosexuality is now the majority view, and so of course is acceptance of birth control.

When the Supreme Court legalized same-sex marriage in Obergefell v. Hodges in 2015, some 60 percent of Americans already supported it. According to the latest Gallup poll, a record 70 percent of Americans now support marriage equality, including 55 percent of Republicans and 84 percent of young adults. Hardly any Americans think homosexuality should be illegal.

Thomas’s idea of reversing Griswold v. Connecticut is even more bizarre. That 7-2 ruling, way back in 1965, overturned an 1879 Connecticut law banning birth control devices and any other such bans on contraception.

Though some Americans, notably strict Roman Catholics, oppose birth control, hardly anyone wants it banned. On the other hand, there are anti-abortion activists who view some forms of birth control, like IUDs, as tantamount to abortion.

Thomas has thus given Democrats an invitation, on the proverbial platter, to codify these rulings in statutory law. It’s time for Democrats to introduce legislation safeguarding marriage equality and the right to privacy in your own bedroom—and force Republicans to vote on them.

Some wonder why Democrats didn’t do just that to protect Roe, back when they had large working majorities and the White House, as in Obama’s first two years.

A second Trump administration will cement a right-wing majority on the Supreme Court for a generation, and put our collective future in the hands of someone who will be virtually unchecked by our institutions. The country has shifted rightward, and the reverberations will ensue for potentially the next few decades. In this climate, a robust independent media ecosystem will be more important than ever. We're committed to bringing you the latest news on how Trump's agenda will actually affect the American people, shining a light on the stories corporate media overlooks and keeping the public informed about how power really works in this country.

Quality journalism is expensive to produce, and we don't have corporate backers to rely on to fund what we do. Everything we do is thanks to our incredible community of readers, who chip in a few dollars at a time to make our work possible. Any amount you give today will help us continue reporting on what matters to our democracy.

You can help power this newsroom by making a one-time donation or by becoming a member today.