Last week’s death of former Republican state Sen. Mike Crotts, author of the state’s 2004 constitutional ban on gay marriage, got me thinking about this generation’s premier culture warrior: another Georgian, named Clarence Thomas.
In his concurring opinion overturning Roe v. Wade, Supreme Court Justice Thomas said the quiet part out loud — that the work of the six conservative justices could be just beginning.
Thomas urged the court to revisit precedent-setting cases like Griswold, Lawrence, and Obergefell, which — respectively — legalized the rights to contraception, same-sex sexual relationships and gay marriages. He notably forgot Loving v. Virginia, the 1967 Supreme Court case which struck down bans on interracial marriage and was settled along the same lines of those other cases. I can’t imagine why a Black man married to a white woman wouldn’t mention that case.
The court’s longest serving justice is a fan of originalism, which takes the Founding Fathers at their word, no matter how much life has changed since bleeding was a prescribed medical remedy. One can only think of what the powdered wig crowd would think of gay people, contraceptives and interracial marriage.
With Roe toppled, we can expect to see ingenious lawyers and legislators crafting cases to outlaw morning-after pills and same-sex relationships, no matter what Americans think.
I was surprised to be reminded in Crotts’ obituary that 76% of Georgia voters supported banning gay marriage in 2004. But polls show Georgians and Americans have embraced the idea, especially after the 2015 Obergefell ruling. A Gallup poll last year said 70% of Americans support gay marriage, up from 42% in 2004 and 27% in 1996, back when even Bill Clinton didn’t go for it.
Life changes.
Credit: Curtis Compton
Credit: Curtis Compton
Along those lines, I called Mike Bowers, the longtime Georgia attorney general whose name graced a U.S. Supreme Court ruling (Bowers v. Hardwick), one that allowed states to ban same-sex sex. It was overturned in 2003 by Lawrence v. Texas.
For years, Bowers was seen in the gay community as Darth Vader in a business suit. But in 2015, a gentler, kinder Bowers lobbied against religious liberty bills that would have allowed Georgia business owners to deny service to gay folks on religious grounds. He called the bills “ill-conceived, unnecessary, mean-spirited.” Legislators didn’t heed Bowers and passed a bill but then-Gov. Nathan Deal did and vetoed it.
When asked what’s next for the Supremes, Bowers said, “there’s really no limit as to how far the court can go. It’s majority says.”
Bowers says he’s politically homeless these days. “I’m too liberal for the Republicans and too conservative for the Democrats.”
On same-sex marriage, he said: “If they want to spend their life with someone and want the same standards of marriage, well, just leave them alone.”
On abortion: “You’re not going to have peace and quiet if you have a bunch of old white men saying how (women) can use their bodies,” he said, adding, “I know an 18-year-old granddaughter, a 52-year-old daughter and an 80-year-old wife who say, ‘That will not work if there are no abortions in America.’“
The Lawrence ruling might have struck down sodomy laws nationally, but it was Atlanta lawyer Steve Sadow who overturned Georgia’s law in 1998 in the state Supreme Court. He did so with a male heterosexual client and is unsure he’d have won if he represented a gay man.
Credit: KENT D. JOHNSON / AJC
Credit: KENT D. JOHNSON / AJC
Sadow doesn’t think many of the other conservative justices are as revved up to break things as is Thomas. He believes the next battles on that front will be along the lines of Texas trying to limit women from traveling out of state to receive abortions.
He did say Dobbs presented a troubling question: “If there’s not a privacy right in the Constitution, then where do all these other rights come from?”
Interestingly, Sadow said, Georgia’s Constitution has a privacy right and abortion may be fought along those lines. However, the court might bat that argument away. “Can you imagine how the right-to-lifers would react if the Georgia Supreme Court ruled the right to privacy includes abortion,” he said. “They’d go nuts.”
Georgia State University law professor Anthony Kreis thinks battles in the near future will be about “religious liberty” or contraception like the morning-after pill.
“I think same-sex marriage is threatened; but is it going away tomorrow? I don’t think so,” Kreis said. “But you’ll see a number of people emboldened to attack these other rights.”
Cole Muzio, president of Frontline Policy Action, which has lobbied hard against abortion in Georgia. “The court is looking at decisions that were wrongfully decided,” he said. However, he added, " No one I know is seriously talking about contraception or the sodomy law.”
At least now. There’s too much work to be done on the abortion front, he said. That means working to get conservatives elected in the fall.
“There’s an effort to go far quickly, but we’re in it for the long haul,” Muzio said. “Dobbs is the beginning of the fight. This story is not over.”
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