National
Roe leak stokes fears that LGBTQ rights are now at heightened risk
Legal experts diverse on degree of threat to marriage
Fears that same-sex marriage and other LGBTQ rights could be on the chopping block are at a new high after a leaked draft opinion from the U.S. Supreme Court that would explicitly overturn precedent in Roe. v. Wade, although the degree of perceived danger differs among legal observers.
Although language in the leaked draft by U.S. Associate Justice Samuel Alito, which was published late Monday by Politico and confirmed as “authentic” by the Supreme Court, specifically distances the potential ruling from Obergefell v. Hodges, the general reasoning against finding unenumerated rights in the U.S. Constitution could apply to challenges to the landmark 2015 marriage decision.
Karen Loewy, senior counsel for the LGBTQ group Lambda Legal, told the Washington Blade if the draft decision were to become final it would “have no good implications” for either the Obergefell or Lawrence decisions.
“The analysis that Justice Alito has laid out really calls into question the sort of underlying liberty and dignity jurisprudence that really was the underpinning of cases like Lawrence and Obergefell,” Loewy said. “It requires a really cramped vision of what is constitutionally protected, that is tied to histories of oppression that are really, really concerning.”
Alito obliterates long-standing precedent, as defined in the 1973 Roe. v. Wade decision and subsequently affirmed in the 1992 decision in the Planned Parenthood v. Casey, finding a woman’s right to have an abortion is protected under the 14th Amendment.
“We hold that Roe and Casey must be overruled,” Alito writes. “The Constitution makes no references to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the 14th Amendment.”
Alito makes clear for the Supreme Court to find any unenumerated rights under the 14th Amendment, the right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Such an analysis would directly impact LGBTQ rights found under the 14th Amendment. In fact, three separate times over the course of the draft opinion, Alito compares the right to abortion to rights for LGBTQ people as defined by the U.S. Supreme Court.
Those references, however, aren’t to threaten those decisions, but to bolster the case for overturning precedent as established by Roe and limit the impact of the draft opinion.
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” Alito writes, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘un-born human being.'”
In another instance, Alito includes Obergefell and Lawrence among a multitude of cases in a multi-page footnote giving examples of where the Supreme Court has decided to overturn precedent, which the draft opinion would do for Roe v. Wade. Another time, Alito rejects arguments from the U.S. solicitor general that abortion and marriage are connected, asserting “our decision concerns the constitutional right to abortion and no other right.”
Loewy, however, said the fundamental nature of the draft opinion, despite Alito’s rejection that abortion is comparable to LGBTQ rights, undermines that analysis no matter how many times he articulates it.
“The third time is where he offers a fig leaf saying, ‘This analysis is just about abortion rights. It’s not about anything else,’ and so suggests that it would leave untouched a case like Obergefell, when the analysis that he has offered in this opinion clearly leads to the opposite result,” Loewy said.
Indeed, the sweeping nature of Alito’s reasoning against finding unenumerated rights under the Constitution has led some observers to believe the draft was written by Alito alone and without the input of the other eight justices, which could mean the final decision would be a consensus different from the opinion that was leaked. (Upon publishing the leaked opinion, however, Politico did report the Supreme Court has five justices who will vote in favor of overturning Roe, which means without question such a ruling has a majority.)
Not all observers see the opinion in the same way and are interpreting Alito’s references to Obergefell and Lawrence as less threatening.
Dale Carpenter, a conservative law professor at Southern Methodist University who’s written about LGBTQ rights, downplayed the idea the draft opinion against Roe would be a prelude to overturning Obergefell based on Alito’s words denying the connection.
“The opinion tries to make it clear that it does not affect other unenumerated rights, like Lawrence and Obergefell and other fundamental rights cases, like contraceptive cases and other marriage cases,” Carpenter said. “So that’s comforting, I think, to LGBT rights advocates. Second, it says that there’s a fundamental distinction between those other cases and the abortion cases in that the abortion cases involve fetal life or potential life. And so, that I think, is a ground for setting a difference between them.”
Carpenter, however, conceded the mode of analysis in the opinion overturning Roe “is not very friendly to unenumerated rights like marriage and sexual intimacy,” so while Obergefell and Lawrence may face no immediate threat “there might be a longer term concern about decisions like those.”
A follow-up ruling from the Supreme Court rolling back the right for same-sex couples to marry would be consistent with a 2020 dissent from Alito and U.S. Associate Justice Clarence Thomas essentially declaring war on the Obergefell decision, urging justices to revisit the case to make greater accommodations for religious objections.
Jim Obergefell, the lead plaintiff in the marriage equality case and now a candidate for a seat in the Ohio state legislature, said in a statement after the leak of the draft Alito opinion he was fearful that the same forces seeking to overturn precedent for abortion rights would go after LGBTQ rights next.
“It’s also concerning that some members of the extreme court are eager to turn their attention to overturning marriage equality,” Obergefell said. “The sad part is in both these cases, five or six people will determine the law of the land and go against the vast majority of Ohioans and Americans who overwhelmingly support a woman’s right to make her own health decisions and a couple’s right to be married.”
The Supreme Court, of course, couldn’t willy nilly reverse the Obergefell decision, which would require some case or controversy to wind its way through the judicial system before justices could revisit the ruling. Mostly likely, such a hypothetical case would be a state passing a law banning same-sex marriage or simply declaring it would no longer allow same-sex couples to wed in defiance of the Obergefell decision.
No state, however, is engaged in a serious effort to challenge marriage rights for same-sex couples. The last such challenge was in 2020 and from the solicitor general of Indiana, who was seeking to challenge the decision on the basis of birth certificates for the children of women in same-sex marriages. Even the current 6-3 conservative majority on the court declined to hear the case.
Additionally, as polls demonstrate, the nation is in a different place with abortion rights compared to the right for same-sex couples to marry. A recent Fox News poll found six in 10 registered voters still think the U.S. Supreme Court should uphold Roe v. Wade, but more than half of those responders favored banning abortions after 15 weeks. Comparatively, a Gallup poll in September 2021 found support for marriage equality is at a record high of 70 percent and, for the first time, a majority of Republicans back same-sex marriage.
A question also remains about what the draft opinion means for decisions on LGBTQ rights that have yet to come before the Supreme Court but may come at a later time, such as a legal challenge to the “Don’t Say Gay” measure recently signed into law by Florida Gov. Ron DeSantis.
Carpenter said he doesn’t think the observers can glean anything about a potential ruling on the “Don’t Say Gay” law based on the fact the legal challenge would be different than challenges to abortion or same-sex marriage.
“That kind of challenge would more than likely be brought under the First Amendment,” Carpenter said. “And I don’t see the First Amendment being affected by the Dobbs decision. I suppose that someone might want to bring an Equal Protection challenge to the ‘Don’t Say Gay’ law in Florida, but it just doesn’t seem like it would have an immediate impact on even that kind of claim.”
Federal Government
Protesters say SAVE Act targets voters, transgender youth
Bill described as ‘Jim Crow 2.0’
Members of Congress, advocates, and people from across the country gathered outside the U.S. Capitol on Tuesday to protest proposed federal legislation that voting rights activists have deemed “Jim Crow 2.0.”
The Safeguard American Voter Eligibility (SAVE) Act would amend the National Voter Registration Act of 1993 to require in-person proof of citizenship for anyone seeking to vote in U.S. elections.
President Donald Trump has also pushed for the proposed legislation to include a section that would ban gender-affirming medical care for transgender minors, even with parental consent, and prohibit trans people from participating in school or professional sports consistent with their gender identity rather than their sex assigned at birth.
In addition to changing voter registration requirements, the bill would limit acceptable forms of identification to documents such as a birth certificate or passport — records that the Brennan Center for Justice estimates more than 21 million Americans do not have — effectively restricting access to the ballot. It would also ban online voter registration, DMV voter registration efforts, and mail-in voter registration.
A 2021 investigation by the Associated Press found that fewer than 475 people voted illegally or improperly, a tiny fraction of the estimated 160 million Americans who voted in the 2020 election.
Senate Minority Leader Chuck Schumer (D-N.Y.) spoke at the event.
“It will kick millions of American citizens off the rolls. And they don’t even require you to be told,” the highest-ranking Democrat in the Senate told protesters and reporters outside the Capitol. “If this law passes — and it won’t — you’re gonna show up in November … and they’ll say… sorry, you’re no longer on the voting rolls.”
He, like many other speakers, emphasized the bill in the context of American history, pointing to what he described as its racist roots and its impact on Black and brown Americans.
“I have called this act, over and over again, Jim Crow 2.0 … because they know it’s the truth.”
U.S. Sen. Alex Padilla (D-Calif.) was one of the lawmakers leading opposition to the legislation and spoke at the rally.
“It’s not just voting rights that are on the line — our democracy is on the line,” the California lawmaker said. “It’s not a voter I.D. bill. It’s a bait and switch bill.”
He added historical context, noting the significance of voting rights legislation passed more than 60 years ago. In 1965, Alabama civil rights activists marched to protest barriers to voter registration. Alabama state troopers violently attacked peaceful demonstrators at the Edmund Pettus Bridge in Selma, using tear gas, clubs, and whips against more than 500 — mostly Black — protesters.
“61 years ago — not to the day — but this week, President Lyndon Johnson came to the Capitol and addressed a joint session of Congress in the wake of Bloody Sunday and pushed Congress to pass the Voting Rights Act,” Padilla said. “61 years later, Donald Trump and this Republican majority wants to take us backwards. We’re not gonna let that happen.”
U.S. Sen. Ben Ray Luján (D-N.M.) also spoke, emphasizing that he views the effort as a Republican-led and Trump-backed attempt to restrict voting access, particularly among Black, brown, and predominantly Democratic communities.
“President Trump told Republicans when they were meeting behind closed doors that ‘The SAVE Act will guarantee Republicans win the midterms and ensure they do not lose an election for 50 years,’” Luján said. “The first time I think Donald Trump’s been honest … This voter suppression bill is only that. Taking away vote by mail? I hope my Republican colleagues from states that voted for Donald Trump or where vote by mail is popular have the courage and the backbone to stand up and say no to this nonsense, because their constituents are going to push back.”
U.S. Sen. Lisa Blunt Rochester (D-Del.) also spoke.
“Our Republican colleagues have already cut Medicaid, Medicare, people don’t know how they’re gonna be able to afford energy,” she said, providing context for the broader political moment. “We’re in the middle of a war that they can’t even get straight while we’re in it and don’t have a way to get out of it. And we are now faced with defending our democracy?”
She then showed the crowd something that she said has been with her throughout her political journey in Washington.
“I brought with me something that I carried on the day that I was sworn into the House of Representatives when I was elected in 2016, and I carried it with me on the day that I was sworn in as United States senator. And I also carried it with me when I was trapped up in the gallery on Jan. 6 and all I could think to do was pray … This document allowed my great great great grandfather, who had been enslaved in Georgia, to have the right to vote. We took this and turned it into a scarf. It is the returns of qualified voters and reconstruction code from 1867. This is my proof of what we’ve been through. This is also our inspiration.”
“I got to travel between the Edmund Pettus Bridge two times. And even as I thought about this moment, I recognized that while we wish we weren’t in it, while we don’t know why we’re in it, I do know we were made for it … So I came today to tell you that, um, just like the leader said, that he calls it Jim Crow 2.0. I call it Jim Crow 2.NO.”
Kelley Robinson, president of the Human Rights Campaign, the largest LGBTQ advocacy organization in the U.S., also spoke, highlighting the impact of the bill’s proposed provisions affecting trans people.
“This bill is not about saving America. This bill is about stealing an election. This bill is about suppressing voters,” Robinson said. “This bill not only tries to disenfranchise voters that deserve their right to vote, it also tries to criminalize trans kids and their families … It tries to criminalize doctors providing medically necessary care for our trans youth.”
The SAVE Act passed the U.S. House of Representatives on Feb. 11 but has not yet been considered in the U.S. Senate.
Idaho
Idaho advances bill to restrict bathroom access for transgender residents
HB 752 passed in state House of Representatives on Monday
The Idaho House of Representatives passed House Bill 752 on Monday, a measure that would make it a crime for a person to use a bathroom other than the one designated for their “biological sex.”
The story was first reported by the Idaho Capitol Sun after the bill cleared the House.
House Bill 752 would make it a criminal offense — either a misdemeanor or a felony, depending on the number of prior offenses — for individuals who “knowingly and willfully” enter a bathroom or changing room designated for the opposite sex.
The bill would apply to public buildings, including government-owned spaces, and places of “public accommodation,” a category that includes private businesses.
According to the bill’s text, it would “prohibit a person from entering a restroom or changing room designated for the opposite sex; provide a penalty; provide exceptions; define terms; and declare an emergency and provide an effective date.”
A first offense would be a misdemeanor, punishable by up to one year in prison. A second or subsequent offense within five years would be a felony, punishable by up to five years in prison.
The bill passed in a 54–15 vote on Monday. Six Republicans broke with their party’s majority to join nine Democrats in opposing the measure.
The bill’s sponsor, state Rep. Cornel Rasor, a Republican from Sagle near the Washington-Idaho border, told House lawmakers that the legislation is intended to protect women and girls.
“It prevents discomfort and voyeurism escalation and assaults, while preserving single-user options and narrow exceptions so no one is denied access for emergency aid,” Rasor said.
State Rep. Chris Mathias, a Democrat from Boise, disagreed, arguing that the legislation would unfairly target transgender Idahoans.
“The truth of the matter is — and I know a lot of people don’t want to say it — but forcing people who don’t look like the sex they were assigned at birth, or transgender folks, to use other people’s bathrooms is going to put a lot of people in danger,” Mathias said.
The Idaho American Civil Liberties Union made a statement about the bill following its passage.
“Idaho lawmakers continue pushing these harmful, invasive bathroom laws, yet cannot present credible evidence that transgender people using gender-aligned bathrooms threaten public safety,” the Idaho ACLU said. “The bill does nothing to address real criminal acts, such as sexual assault or voyeurism, and disregards concerns from law enforcement about the burden enforcement would place on local resources.”
In addition to human rights advocates, who have spoken out against similar bills advancing in state legislatures across the country, Idaho law enforcement groups have also opposed the measure. They argue that the way the legislation is written would “pose significant practical enforcement challenges,” noting that officers are tasked with maintaining public safety — not conducting gender checks or policing bathroom access.
During a committee hearing last week, law enforcement representatives and several trans Idahoans testified that the bill would make many residents less safe.
“Officers responding to a complaint would be placed in the difficult position of determining an individual’s biological sex in order to enforce the statute,” Idaho Fraternal Order of Police President Bryan Lovell wrote. “In many circumstances, there is no clear or reasonable way for officers to make that determination without engaging in questioning or investigative actions that could be viewed as invasive and inappropriate.”
The Idaho Sheriffs’ Association requested that lawmakers amend the bill to require that individuals be given an opportunity to leave a bathroom immediately before facing potential prosecution.
The bill now heads to the Idaho Senate for consideration. To become law, it must pass both chambers and avoid a veto from the governor.
A separate bathroom bill, House Bill 607, which would be enforced through civil lawsuits, passed the House last month but has not yet received a committee hearing in the Senate.
State Department
Report: US to withhold HIV aid to Zambia unless mineral access expanded
New York Times obtained Secretary of State Marco Rubio memo
The State Department is reportedly considering withholding assistance for Zambians with HIV unless the country’s government allows the U.S. to access more of its minerals.
The New York Times on Monday reported Secretary of State Marco Rubio in a memo to State Department’s Bureau of African Affairs staffers wrote the U.S. “will only secure our priorities by demonstrating willingness to publicly take support away from Zambia on a massive scale.” The newspaper said it obtained a copy of the letter.
Zambia is a country in southern Africa that borders Tanzania, Malawi, Mozambique, Zimbabwe, Botswana, Namibia, Angola, and the Democratic Republic of Congo.
The Times notes upwards of 1.3 million Zambians receive daily HIV medications through PEPFAR. The newspaper reported Rubio in his memo said the Trump-Vance administration could “significantly cut assistance” as soon as May.
“Reports of (the) State Department withholding lifesaving HIV treatment in return for mining concessions in Zambia does not make us safer, stronger, or more prosperous,” said U.S. Sen. Jeanne Shaheen (D-N.H.), the ranking member of the Senate Foreign Relations Committee, on Tuesday. “Monetizing innocent people’s lives further undermines U.S. global leadership and is just plain wrong.”
The Washington Blade has reached out to the State Department for comment.
Zambia received breakthrough HIV prevention drug through PEPFAR
Rubio on Jan. 28, 2025, issued a waiver that allowed PEPFAR and other “life-saving humanitarian assistance” programs to continue to operate during a freeze on nearly all U.S. foreign aid spending. HIV/AIDS service providers around the world with whom the Blade has spoken say PEPFAR cuts and the loss of funding from the U.S. Agency for International Development, which officially closed on July 1, 2025, has severely impacted their work.
The State Department last September announced PEPFAR will distribute lenacapavir in countries with high prevalence rates. Zambia two months later received the first doses of the breakthrough HIV prevention drug.
Kenya and Uganda are among the African countries have signed health agreements with the U.S. since the Trump-Vance administration took office.
The Times notes the countries that signed these agreements pledged to increase health spending. The Blade last month reported LGBTQ rights groups have questioned whether these agreements will lead to further exclusion and government-sanctioned discrimination based on sexual orientation and gender identity.
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