Gay Marriage Is Next Up on the SCOTUS Chopping Block
I am approximately zero percent surprised by the draft opinion overturning Roe v. Wade, authored by Supreme Court Justice Samuel Alito, that was leaked to Politico.
Not only am I unsurprised—I predicted it, several times, in this publication. And not just me, of course, but everyone in my profession. Overturning Roe is in the Republican Party’s platform. It was the primary criterion that the Federalist Society, funded by religious extremists, used to pick Supreme Court justices for Donald Trump. Together with desegregation, it propelled the Religious Right to get into politics 50 years ago, and vote for Republicans ever since.
So, yes, we all told you this was inevitable. And now it is here.
But “you”—by which I mean the large majority of voters who say that women have a right to control their own bodies—didn’t listen. The Supreme Court ranked at the bottom of Democrats’ concerns in 2016, while it was at the top of Republicans’. Even after the unprecedented and norm-shattering mistreatment of judicial nominee Merrick Garland, many centrist voters didn’t care and some left-wing voters didn’t think it was enough to stomach voting for Hillary Clinton.
So we got Justices Gorsuch, Kavanaugh, and Barrett, and now, if this draft becomes the majority opinion, we’ve got the end of Roe v. Wade.
But that’s only the beginning of the end. If the reasoning of the draft becomes the majority opinion—and it is worth stressing that this is by no means assured, since it is a draft and may well be watered down by other justices—then it applies equally to Obergefell v. Hodges, which held that all marriages (including my same-sex one) are protected by the Constitution; to Lawrence v. Texas, which held that all intimate sexual activity (including same-sex) was too; and to Griswold v. Connecticut, which held that the right to access contraception is as well.
All those cases held that certain specific rights to bodily integrity and privacy, though unmentioned in the Constitution, are implicit in the broad guarantees of the 14th Amendment, as long as they were part of the “concept of ordered liberty.” It’s not part of the concept of liberty to police a woman’s uterus or a gay man’s bedroom. There are limits to government power, and no process can be “due process” if it transgresses those limits.
But in so-called Originalism, a once-fringe legal theory that is now the gospel of half the Supreme Court, a right must also be “part of the Nation’s history and traditions” to be protected. Sorry, women and gays, you’re not part of our white-male-dominated history and traditions, so the constitution doesn’t protect you.
To be clear, Justice Alito didn’t leave this to speculation. He specifically mentioned Obergefell and Lawrence as examples of the same faulty reasoning behind Roe.
More: https://www.thedailybeast.com/we-told-you-that-the-supreme-court-was-coming-to-kill-roe-v-wade-and-more-but-you-didnt-listen
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The draft opinion is an abomination and no one can be certain what cases will come before the Court in the future and how they will be decided. But the two times Alito's draft mentions Obergefell are not as examples of "the same faulty reasoning behind Roe." To the contrary, the opinion expressly distinguishes Obergefell (and Loving and Griswold etc) from Roe and Casey. Which makes it harder (but not impossible) to rely on this case in overturning those decisions.
Here are the two places it mentions Obergefell:
"Nor does the right to have an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person ofa different race, Loving v. Virginia, 388 U.S. 1(1967); the right to marry while in prison, Turnerv. Saftey, 482 U. S. 78 (1987); the right to obtain contracep- tives, Griswold v. Connecticut, 381 U.S. 479 (1965), Eisen- stadt v. Baird, 405 U. S. 438 (1972), Carey v. Population Services International, 431 U. S. 678 (1977); the righttore- side with relatives, Moore v. Fast Cleveland, 431 U. S. 494 1977); the right to make decisions about the education of one's children, Pierce v. Society of Sisters, 268 U. S. 510 (1925), Meyerv. Nebraska, 262 U. S. 390 (1925); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U. S. 753 (1985), Washington. Harper, 494 U. S. 210 (1990), Rochin.v. California, 342 U. S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v.‘These attempts to justify abortion through appeals to a broader right to autonomy and to define one's “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F.3d 1140, 1444 (CA9 1996) (O'Scannlain, J., dissenting from denial of rehearing en banc). None ofthese rights has any claim to being deeply rooted in history. Id., at 1440, 1445. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different"
; Casey, 505 U.S. at 852 (abortion is “a unique act’). None ofthe other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in anyway. "
"Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court's precedents holding. that the Due Process Clause protects other rights.” Brief for United States as Amicus Curiae 26 (citing Obergefell v. Hodges, 576 U. 8. 644 (2015); Lawrence v. Texas, 539 U. S. 558 (2008); Griswold v. Connecticut, 381 U. S. 479 (1965)). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[aJbortion is a unique act” because it terminates “life or potential life.” 505 U.S, at 852; see also Roe, 410 U. 8., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our de- cision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
They'll probably focus group the hell out of issues to find their favorite to run up next.
