Pride Month: Roe v. Wade looming, has a new sense of urgency – NorthJersey.com
A shadow. A cloud. A distant rumble of thunder.
The weather couldn’t have been better for New Jersey’s 30th annual LGBTQ+ Pride Celebration in Asbury Park on June 5.
And yet, in this particular Pride Month, there’s been something in the air.
“It was definitely percolating in the conversation,” said Rick Kavin, president of the Pride Center of New Jersey, based in Highland Park, who was in Asbury that weekend.
People were thrilled, of course, to be back celebrating after two years of lockdown. “It felt like a homecoming,” Kavin said.
But coming on the heels of a leaked supreme court document that seemed to suggest a renewed assault, not just on abortion rights, but also potentially on marriage equality and other gay-adjacent issues, Pride Month 2022 — for all its glitz and glamour and high spirits — is not without a certain ominous undertone.
“Everybody was happy to see each other,” he said. “But there was conversation about what was happening at the national level, especially with Roe v. Wade and how that could affect our community.”
The worrisome developments at the Supreme Court, coupled with the “Don’t Say Gay” bills in places like Florida and Alabama, the book bannings, and the anti-trans legislation that is making its way through the legislatures of many states, is the specter at the feast.
“People are anxious,” said C.J. Prince, executive director of North Jersey Pride, based in Maplewood.
The fear isn’t dampening the enthusiasm, she said. “If anything, it’s making people more excited and enthusiastic and determined. We will protest, and we will celebrate. Those things are not mutually exclusive.”
Pride, and prejudice
That may be a change from recent years — when Pride Month felt more like a victory lap.
So much, so quickly! First civil unions (Vermont, 2000), then the repeal of Don’t Ask Don’t Tell (2011), then full marriage equality (2015), the first LGBTQ+ national monument (Stonewall, 2016), the legalization of same-sex adoption (2017), and the current discussion of trans rights.
And everywhere, the increased visibility of the community in movies, TV, sports, politics, entertainment. Looked at one way, it’s been a steady stream of wins.
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But if there’s one thing the LGBTQ+ community knows, it’s that with progress inevitably comes backlash.
“The LGBT community are no strangers to this kind of thing,” said Gordon Sauer, affiliate leader of SAGE (Services & Advocacy for LGBT Elders ) Jersey City, also the president of GAAMC (Gay Activist Alliance in Morris County).
“Throughout our entire history we have had challenges like this,” Sauer said. “We fought against it then, we worked to get the rights we currently have. They way I look at it — and many people do — it’s really all the more reason for us to be out and present.”
Younger LGBTQ+ Americans, who may have barely heard of “the closet,” might do well to turn to the community elders just now. They’ve fought this fight before.
“I have a 13-year-old, and she can barely remember a time when we couldn’t get married,” Prince said. “We know, those of us who are elders in the community, that there are always setbacks in the march to equality — but we have to keep marching forward.”
That’s been true since June 1969 — when an uprising against police at the Stonewall Inn in New York sparked the modern gay rights movement, and began the June Pride Month tradition.
“Pride started as riots,” Prince said. “And I’m fine going back to our roots.”
Letter of the law
The rightward lurch of the Supreme Court is especially disturbing to Kavin, a constitutional scholar who teaches classes called “Law and Politics” and “LGBTQ+ Politics in America” at Rutgers. More than most, he knows the vulnerable foundations on which most of these new entitlements are built.
“I’m pretty worried, I gotta be honest,” he said. “I’m much more worried than I was a year ago.”
The shock waves from early May, when a leaked draft of a Supreme Court opinion seemed to lay out a strategy for overturning the 1973 Roe v. Wade decision that grants legal right to abortion, are still being felt.
A women’s rights issue, for sure. And many in the LGBTQ+ community would stand, on principle, with the idea that the state has no business dictating what people do with their bodies. “The Roe thing is terrifying in itself,” Prince said.
But it also has a direct bearing on those in the LGBTQ+ community.
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The “originalist” legal argument propounded by Justice Samuel Alito in the leaked document — it must be emphasized that this is a draft, not a final opinion — is that the right to abortion is not implied in the Fourteenth Amendment’s due process clause, as Roe had argued. Nor is it deeply ingrained in the country’s history.
The same argument could also be used to overturn marriage equality, interracial marriage, access to contraception, private sexual activities of any kind — almost any other right not specifically guaranteed in the Constitution or the Bill of Rights.
Not, Alito insists, what he’s after.
“Nothing in this opinion should be understood to cast doubt on our precedents that do not concern abortion,” he wrote. An anti-abortion ruling by the Supreme Court, he said, would have no implications for marriage equality or any other issue. Abortion is “unique” in that it involves a threat to “potential life.”
Yet the logic of his argument suggests that it is anything but unique. And many in the LGBTQ+ community are not inclined to take him at his word.
They see it as inevitable that — probably sooner rather than later — conservatives emboldened by the overturning of Roe would tee up a test case to overturn gay marriage.
“The LGBT community is tremendously concerned about this, and we’re definitely doing everything we can to be informed about a possible challenge to marriage equality,” Sauer said. “Of course we’re talking about it.”
States of confusion
If it happened? Probably, like abortion, the matter of marriage equality would revert back to the states. Couples married in one state would be un-married in others — with all that implies for government benefits, adoption rights, hospital visitations, and basic human dignity.
“We’re very lucky to be where we are in New Jersey, with a pretty strong support system for LGBTQ residents, and a very supportive governor,” Kavin said. “People in other places don’t have those protections.”
Why should abortion, marriage equality and other settled laws potentially be in the crosshairs just now? That, Kavin said, goes back to a foundational case from 48 years ago.
Griswold v. Connecticut, the 1965 decision that granted couples the legal right to contraception, was a landmark in terms of privacy rights.
From it flowed many of the later decisions that have reshaped modern America — including Roe v. Wade (1973), Lawrence v. Texas (2003), which ruled that anti-sodomy laws were unconstitutional, and Obergefell v. Hodges (2015) which guaranteed the right of marriage to same-sex couples.
But the Griswold decision, Kavin said, was actually founded on a legal patchwork.
“There was no real constitutional hook to hang this on,” he said. “There’s no such thing as a right to privacy in the constitution.”
The majority, he said, cobbled together what they termed a right to privacy, based on bits and pieces of the Bill of Rights.
From the First Amendment, the freedom of expression. From the Third Amendment — against quartering of soldiers — the sanctity of the home. From the Fourth Amendment, the ban of “searches and seizures.” From the Ninth Amendment, that existing constitutional rights don’t imply that other rights don’t exist. And from the Fourteenth Amendment, that no law can “abridge the privileges and or immunities” of U.S. citizens.
It is this logic that is under attack by the originalists of the Supreme Court. All such decisions made on this basis are questionable, they say.
“They’re saying the law was badly interpreted, and is not the basis we should be deciding these cases on,” Kavin said.
The implication: Short of those rights guaranteed by the Bill of Rights and its amendments, nothing is settled. Slavery can’t come back (Thirteenth Amendment). Women can’t be denied the vote (Nineteenth Amendment). But much else would seem to be fair game.
“It definitely brings back the states’ rights argument,” Kavin said. “You could foresee individual states doing different things with marriage, for instance.”
How to forestall this? It might — the logic of the originalists — require a constitutional amendment. That could be the next fight.
“I know that’s a tall order,” Prince said. “But we have been marching, protesting and celebrating in the face of adversity since Stonewall, and we will continue to do that until we have permanent equal rights for every member of the LGBTQ community.”
A family affair
Should the Supreme Court reverse Obergefell v. Hodges, it might be reckoning without the American public.
Starting in the 2010s, opinions changed, with startling rapidity, on the issue of marriage equality. Since 2015 — seven years — it’s been the law of the land.
Gay married couples have become incorporated, by the hundreds of thousands, into the traditional American family unit. Steve and his husband, Eileen and her wife, are the guests at the Thanksgiving table, the bringers of Christmas gifts for the kids.
If the Supreme Court were to overturn Obergefell, they might face outrage — not just from the LGBTQ+ community, but from millions of people of all persuasions who don’t want their families broken up.
“If the Supreme Court comes after marriage, I think Washington would need some more square footage to fit the protests,” Prince said.
Jim Beckerman is an entertainment and culture reporter for NorthJersey.com. For unlimited access to his insightful reports about how you spend your leisure time, please subscribe or activate your digital account today.
Email: beckerman@northjersey.com
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