Posted on June 27, 2022

As the Supreme Court Overturns Roe v. Wade, Some Experts Fear Interracial Marriage May Be the Next Target

Madison Hall and Yoonji Han, Insider, June 24, 2022

Experts fear the Supreme Court’s ruling on June 24th to overturn Roe v. Wade could put the constitutional right to interracial marriage in jeopardy.

When the nation’s highest court nullified federal abortion rights that had been secured under Roe, Justice Clarence Thomas expressed that the Court should also “reconsider” rulings that protect contraception access, same-sex-relationships, and same-sex marriage.

In a solo concurring opinion, Thomas argued the Court should reexamine what rights are protected under the due process clause of the 14th Amendment. He explicitly names the Court’s landmark Griswold, Lawrence, and Obergefell decisions, which protect contraception access, same-sex relationships, and same-sex marriage.

The due process clause prohibits states from depriving Americans of “life, liberty, or property without the due process of law.” In the past, the Court has used this clause to protect certain “substantive rights” that are not explicitly listed in the Constitution — such as the right to same-sex marriage — arguing that they are liberties that cannot be infringed upon. In his opinion, however, Thomas argues against this interpretation of the clause.

“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents,” Thomas wrote.

Notably, in his concurring opinion, Thomas stopped short of mentioning another ruling protected under the 14th Amendment: Loving v. Virginia, which protects interracial marriage.


In his own concurring opinion, Justice Brett Kavanaugh splits from Thomas, appearing to suggest that the Court’s overturning of Roe will not affect the standings of past rulings, including Loving, Obergefell, and Griswold.


Nevertheless, the Court’s conflicting opinions worried some legal experts, who told Insider they fear the high court could challenge the Loving decision in the future if the proper cases come before them.

“What we see today is that there is very little that is sacred in terms of privacy,” Michele Goodwin, a constitutional law professor at the University of California, Irvine, told Insider.


Rakim Brooks, an appellate attorney and the president of the Alliance for Justice, told Insider he believes Thomas’ opinion on due clause precedents may be seen as a call-to-action for others to begin filing cases that challenge Obergefell, Griswold, and Lawrence.


Thomas did not expressly mention the Loving decision in his opinion as a case to be overturned, but Brooks noted the Court could still revisit the precedents set by it in a future case. Thomas, himself, is in an interracial marriage with his wife, Ginni Thomas.


Similarly, Goodwin said that by overturning Roe, the Supreme Court has sent a “dog whistle” to states.

“The Supreme Court doesn’t have to engage itself with dismantling protections for interracial marriage. By sending the signal with Roe and by Justice Thomas undergirding that signal, it’s now left to the county clerks,” Goodwin said.

Given the rise in white nationalistic sentiment in the US, Goodwin said she is afraid that “all it takes” is for those holding extreme views to become those county clerks making decisions that can undercut fundamental rights, like interracial marriage.


Brooks, who previously clerked for Kavanaugh, told Insider he believes his former boss could still vote in favor of repealing Loving if given the opportunity, despite what he wrote in his concurrence. {snip}