- The leaked Supreme Court draft opinion is a "roadmap" to gut rights like gay marriage, experts said.
- "This opinion undercuts the foundation of the protections for many fundamental rights," one said.
- But a lawyer behind Obergefell v. Hodges, the case that legalized gay marriage, said it would be hard to roll back.
The leaked US Supreme Court draft opinion poised to overturn the landmark five-decade-old Roe v. Wade decision lays a "roadmap" to potentially strike down other rights such as gay marriage, law experts told Insider this week.
And though one of the attorneys behind the historic case that legalized same-sex marriage nationwide agreed that advocates should be worried, he noted it would be tough to roll back the 2015 ruling.
Fears were quickly sparked about the future of LGBTQ rights in America following Monday's bombshell news that a draft opinion shows that the conservative-majority Supreme Court is poised to overturn the 1973 Roe v. Wade decision that established a woman's constitutional right to abortion.
The draft opinion, written by conservative Justice Samuel Alito and backed by four other Republican-appointed justices, "is a roadmap to striking down every other thing that the conservative movement is against," said Maxwell Mak, a political science professor at New York's John Jay College of Criminal Justice.
"There is a roadmap to saying that, hey, if judges have created laws that don't explicitly exist in the Constitution, and if you don't think they're fundamental, they can go away tomorrow," Mak said.
The unprecedented leak of the draft is not the Supreme Court's final ruling, but Mak — who has studied the high court — said that if the opinion becomes the law of the land, then the right to gay marriage, as well as contraceptive options, and personal autonomy could be threatened.
"I think all rights associated with the right to privacy and individual liberty do become weakened" if the draft should become finalized, Mak said.
Like abortion, the right of same-sex couples to marry, and many other personal freedoms, are protected under the due process clause of the Fourteenth Amendment.
In the draft opinion, Alito writes that the 1973 abortion ruling was "egregiously wrong from the start," and argues that the decision must be overturned because the "Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."
"The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions," Alito writes.
Legal experts say the conservative majority Supreme Court may not stop with Roe v. Wade
Considering same-sex marriage is not deeply rooted in the nation's history, it becomes vulnerable under Alito's draft opinion, Noah Rosenblum, a law professor at New York University School of Law, told Insider.
"The logic of this opinion undercuts the foundation of the protections for many fundamental rights, including the fundamental right to marry the person you love without regard for sexual orientation or gender," Rosenblum said.
Alito's 98-page draft opinion explicitly argues that the Court's decision to overturn the right to an abortion wouldn't apply to any other rights besides abortion.
"We emphasize that our decision concerns the constitutional right to abortion and no other right," Alito wrote. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
But Rosenblum called this an "empty statement."
"The logic of the opinion is what governs," Rosenblum said. "And the political will of the justices is what governs, and that logic and that political will point in one direction."
Nelson Tebbe, a law professor at Cornell Law School, echoed those remarks, saying that the draft opinion offers "cold comfort to people who are worried about the status of same sex marriage."
In the draft opinion, "the court takes a very strict and restrictive view on what kinds of rights get protected under the due process clause," Tebbe said.
"The legal conditions for overturning" the 2015 Supreme Court decision in Obergefell v. Hodges that legalized gay marriage nationwide "are certainly in place," thanks to the draft opinion, Tebbe said.
"And it seems like the politics of the Supreme Court have been further revealed and what we see is a very aggressive, radical, conservative wing of the Supreme Court that's ready to make big changes in American society," Tebbe said, adding, "It could very well not end here."
It would be tough to roll back the historic Obergefell v. Hodges ruling that legalized same-sex marriage nationwide
Douglas Hallward-Driemeier, one of the lawyers who won the historic Obergefell v. Hodges case, told Insider that the leaked draft opinion "should worry advocates of LGBTQ rights," but that it would be hard to overturn the 2015 ruling.
He added that the draft opinion, if finalized, "would represent an unfortunate reversion to fundamental rights that would only protect those who have been historically privileged."
However, Hallward-Driemeier explained that there are important distinctions between Roe and Obergefell.
"First being that there are intense reliance interests that relate to marriage and relationships that have already been formed," Hallward-Driemeier said. "And secondly, that Obergefell rests on a fundamental right to marry."
The fundamental right to marry is one that even Obergefell dissenters, which included Alito, recognized, Hallward-Driemeier said.
The lawyer, who has argued 18 cases before the Supreme Court, noted that the hundreds of thousands of already married same-sex couples in the US would "make it very difficult to unwind Obergefell."
"The reliance interests of already married same-sex couples are extremely powerful and would be an enormous obstacle, both practical and legal, to any attempt to undue Obergefell," Hallward-Driemeier said.
Additionally, Hallward-Driemeier said gay couples preparing to get married "should not hesitate for a second" to tie the knot despite fears of losing marriage equality.
"Further enshrining full marriage equality in the fabric of our society will provide even greater protection to the rights recognized in Obergefell."