With abortion in limbo, what about other rights in Kentucky? Here’s what experts say.

According to Kentucky law, same-sex marriage is against the state constitution and “deviate sexual intercourse” between two people of the same sex is a misdemeanor criminal act.

Neither of these laws are enforceable, however, due to court cases that rendered them moot – landmark U.S. Supreme Court Case Obergefell v. Hodges for same-sex marriage and 1992 Kentucky Supreme Court for a law that prohibits “deviate sexual intercourse” between two people of the same sex.

But one item in the U.S. Supreme Court’s recent opinion that struck down the constitutional right to an abortion in Dobbs v. Jackson has activists and some legal scholars in Kentucky concerned about whether or not those laws may get reactivated. How likely is that to happen?

“Same-sex marriage cases were built on top of abortion cases, which were built on top of contraception cases,” said Josh Douglas, a constitutional law professor at the University of Kentucky College of Law. “The underlying legal theories are all connected.”

Clarence Thomas sparks concerns

A quote from Supreme Court Justice Clarence Thomas, of the 5-4 U.S. Supreme Court majority last month, suggested those other cases could be reconsidered. Thomas wrote in a concurrence to Justice Samuel Alito’s majority opinion that the nation’s highest court should “revisit” the cases that nullified laws against contraception, same-sex marriage and same-sex sexual relations.

Alito essentially counters Thomas’ suggestion. He wrote several times that the court’s overturning Roe did not imply that they would do the same to those cases – Griswold for contraceptives, Lawrence for same-sex intercourse and Obergefell for same-sex marriage. Alito’s opinion activated Kentucky’s trigger ban on abortion, which is currently tied up in the courts after a Louisville judge held up enforcement of the ban.

Despite Alito and others’ insistence, Thomas’ comment has fueled fears among some.

The Kentucky constitutional provision barring same-sex marriage, later rendered moot by Obergefell in 2015, passed via ballot initiative in 2004.

Ernesto Scorsone, a retired Lexington judge and Kentucky’s first openly gay legislator, said that even though Thomas’ suggestion that the court “reconsider” cases like Obergefell was rebuffed, it’s “appropriate to be concerned.”

But when it comes to gay rights, that concern is limited to the right to marry, according to Scorsone.

“Kentucky’s sodomy law was ruled unconstitutional based on the state constitution. So even if the Supremes overturn Lawrence it would not affect us directly,” Scorsone said. “Marriage is another story. Without federal protection our right to marry would evaporate.”

Dr. Jonathan Coleman – a historian who runs the Faulkner Morgan Archive, which shares Kentucky’s LGBTQ history – shared Scorsone’s sentiment.

“Of course there’s concern, and Thomas’ concurrence is almost an invitation to challenge those precedents,” Coleman said.

What about the state legislature?

Senate Majority Floor Leader Damon Thayer, R-Georgetown, said that as of earlier this month no legislator had discussed any action on same-sex marriage or the sodomy law.

House Majority Floor Leader Steven Rudy, R-Paducah, said that while he hadn’t consulted with House members, he could see “a lot of support within our caucus at looking at” those issues, as well as contraception.

“I’m hearing from everyday Kentuckians right now that are concerned about a lot of those issues,” Rudy said. He added that concerns about the economy overpower those, though.

The GOP currently enjoys massive veto-proof majorities in both state legislative chambers, 75 to 25 in the House and 30 to 8 in the Senate.

One effort from a Republican this past session to repeal the sodomy law suffered an unceremonious death.

Rep. Kim Banta, R-Ft. Mitchell, introduced the simple bill, which garnered 12 co-sponsors – all Democrats.

“Unfortunately there was not any support to move it,” Banta said of the bill.

Another gay rights bill sponsored by Republicans, Senate Bill 137, which would have banned gay conversion therapy, was never heard in the Senate Health & Welfare committee.

Paul Salamanca, a constitutional law professor at the University of Kentucky College of Law, said that the future of same-sex marriage is likely more solid than some might think.

“I understand people’s anxiety, but I think Thomas’ point of emphasis is that we’re looking at them through the long run lens. I would add that he’s only one person and it would take more people than that to reexamine any of these precedents. If the court found four more Clarence Thomases, then I guess (it would be different).”

Douglas said that there were “three competing considerations” to think about when considering the future of same-sex marriage and other rights.

“One is Justice Thomas explicitly said, we should at least consider these. Two is that Alito and (Supreme Court Justice Brett) Kavanaugh said ‘Dobbs is not about these cases,’ so you have some justices who are going on record on this. The third thing to think about is that there’s a through line from Griswold on contraception to Roe and Planned Parenthood v. Casey, to Obergefell. They all rest on the same constitutional concept of a right to privacy and autonomy in one’s personal affairs. It’s a little bit difficult to see how if the underlying constitutional theory of Roe is wrong, why does that not also impact these other cases,” Douglas said.

‘Bells that are pretty much impossible to unring’

A lot has changed since Kentucky passed a constitutional amendment in 2004 effectively banning same-sex marriage. Support for marriage equality nationwide has catapulted to 71% as of last year. It became more popular than not in the U.S. in 2012, when former president Barack Obama changed his stance to support it.

In 2014, only 38% of Kentuckians supported same-sex marriage while 52% opposed. However, if Kentucky’s attitudes swung as quickly as the rest of the nation’s, from 54% to 71% approval between 2014 and 2021, it would be more supported than opposed as of today.

According to Politico, the national Republican Party has largely dropped same-sex marriage as an issue, instead focusing its energy on opposing other priorities of the LGBTQ community like transgender rights.

Attorney General Daniel Cameron’s office – in response to questions about whether it would enforce the same-sex marriage ban or sodomy law if court decisions were to be reversed and if Cameron had a stance on whether those provisions should be repealed – said they would not speculate on a hypothetical.

“The majority opinion in Dobbs says repeatedly that nothing in the opinion should cast doubt on the Obergefell decision. In the wake of Dobbs, we are focused on providing life-affirming care and options for women and families, not speculating on hypotheticals,” Cameron spokesperson Elizabeth Kuhn said.

There appear to be no laws directly prohibiting contraceptives on the books in Kentucky – with the exception of some restrictions on prescribing them to minors without parental consent – but at least some corners of the state’s conservative anti-abortion movement have put a target on contraceptives.

Northern Kentucky Right To Life, a regional nonprofit anti-abortion organization, supports candidates that pledge in response to their survey to “oppose mandating health insurance coverage of… artificial contraception.”

Every Northern Kentucky Republican running in 2022 that submitted answers – that includes every state-level GOP primary winner – responded in the affirmative. The organization did not respond to emailed questions about its advocacy plans in the future.

Salamanca said that fears about the courts changing precedent related to contraception as well as same-sex marriage and sexual relations might be assuaged by variations in how courts see the topics through the lens of “reliance.” Reliance, in a constitutional context, is the dependence of an individual on the court’s establishment of a right.

The reliance on non-abortion rights, he predicted, could give those rights a better chance in court.

“People went ahead and got married to people of their own sex,” Salamanca said. “They bought houses, they borrowed money, they executed wills, they adopted kids cross adopted each other’s kids. That’s reliance and those are bells that are pretty much impossible to unring. I think Obergefell cannot possibly be overruled on that.”