What the Briefs in Jackson Women's Health (Don't) Say about Same-Sex Marriage

For the most part, supporters of Mississippi's abortion ban in the Supreme Court are steering clear of Obergefell


Eugene's re-posting of Professor Stephen Gilles' argument about Obergefell v. Hodges in the Mississippi abortion case this Term prompted me to take a quick look at what the other briefs in Dobbs v. Jackson Women's Health are saying (and mostly not saying) about the landmark same-sex marriage decision.

There were 81 briefs on the petitioners' side (supporting Mississippi) filed in late July. Many of them unabashedly compare Roe and Casey to decisions like Dred Scott and Lochner v. New York as examples of constitutionally unsound results that caused harm and injustice.

By my count, only 11 of the 81 briefs even cite Obergefell. Of those 11, eight simply refer to a dissent in Obergefell, most commonly the one from Chief Justice Roberts, for the proposition that judges should be careful about declaring unenumerated rights lest they circumscribe too many democratic choices. But the briefs do not directly criticize the outcome or otherwise critique the reasoning of Obergefell. (Of course, I do not mean to suggest that the amicus brief authors support same-sex marriage. Many are among the most prominent opponents of it as a matter of policy and constitutional law.)

Of the three briefs that deal with the substance of Obergefell, two can be classified as relatively favorable. One of these is the brief from Professor Gilles. He writes:

Roe and Casey were not rightly decided under the 'reasoned judgment' approach as described and applied in Obergefell. The right to elective abortion was adopted and reaffirmed on the basis of specious arguments, question-begging assumptions, and inconsistent reasoning, not reasoned judgment. (p. 7)

In Gilles' view, Roe and Casey misrepresented Anglo-American history and traditions related to abortion and failed to engage the applicable precedents with "principled consistency." The implication is that Obergefell was a defensible application of the fundamental right to marry while Roe was an ugly excrescence on constitutional doctrine.

The second of the three briefs dealing substantively with Obergefell is the one for Mississippi itself. The petitioners' brief seemingly concedes the very formulation of the constitutional issue asserted by the gay couples in Obergefell.

Nor can a right to abortion be justified under Obergefell v. Hodges, 576 U.S. 644 (2015), which recognized a fundamental right to marry. Obergefell applied the understanding that when a right "is fundamental as a matter of history and tradition"—like marriage—then a State must have "a sufficient justification for excluding the relevant class" from exercising it. Id. at 671. That understanding has no relevance here, where the question is not "who [may] exercise[ ]" a fundamental right to abortion but whether the Constitution protects such a right at all. (p. 13)

The challenge for gay couples in Obergefell was to get the Court to see the claimed constitutional right in exactly this way: as the logical and experience-based affirmation of an old right (the right to marry), rather than as the a priori concoction of something new (the right to same-sex marriage).

Similarly, Mississippi posits a world of doctrinal difference between abortion and same-sex marriage (and homosexual conduct) when it comes to harm:

Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life. Cf. Obergefell, 576 U.S. at 679 ("[T]hese cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties."); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (similar). (p. 17)

Perhaps Mississippi felt it had to adopt these perspectives on Obergefell because the Court itself had adopted them. There is a difference between accepting premises for the sake of argument and actually believing those premises. Abortion opponents are already asking the Court for a monumental reversal. There's no need to add yet more to that burden.

Nobody supposes Mississippi's lawyers suddenly awoke to the merits of a constitutional right to gay marriage. And few gay marriage supporters will take much comfort in the comparative silence about Obergefell coming from Mississippi's 80 amici. Prominent LGBT rights groups and advocates warned in an amicus brief filed yesterday that overruling Roe and Casey "cannot be reconciled with this Court's decisions affirming the fundamental equality of women and of LGBTQ people." (p. 18)

But the effect of the argument being made by Professor Gilles and Mississippi is to offer the Court a way to do precisely that: overrule Roe and Casey without threatening other important precedents. Whether such efforts to distinguish Roe/Casey from Obergefell could be successful is a subject for another day.

There is, however, one notable brief supporting Mississippi that squarely takes on Obergefell–and much more besides. I'll have more to say about that in a separate post.

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  1. Prof. Carpenter, it’s entirely possible, and extremely common, to support same-sex marriage without believing that the constitution compels states to recognize it.

    Stop conflating policy and constitutional law, please.

    1. This post reads like a badly drafted essay question that presupposes to answer itself.

      1. Same sex marriage, yet another lawyer delusion, imposed on the rejecting nation by judicial review.

        Nothing the scumbag lawyer profession says or does will ever change the fact, homosexual marriage is a fiction, and will never, ever be more than a friendship.

        This was not even a homosexual idea. It was a desperate lawyer idea to drum up business after killing marriage for hets. Homosexuals with their high earnings and great wealth have not fallen for this lawyer trap, and have 90% rejected the idea.

        Marriage is to privilege and to promote reproduction, the sole purpose of life. Homosexuals cannot do that.

    2. It’s also entirely possible to support same-sex marriage from a legal standpoint while also believing that homosexuals are mentally ill.

      1. Indeed, people have a moral right to do a great many things that stem from mental illness. Even a constitutional right to do many of them. Which is not to say that the courts are legally entitled to arrive at the second position on the basis of the first.

          1. Judges aren’t there to enforce moral rights, dude. They’re there to enforce legal rights.

            1. What on earth does that have to do with my question? Do you actually think homosexuality is a mental illness? And if so, so what?

              1. No, as discussed below, I think it’s a neural birth defect, a malfunction of the neurologically determined targeting of the mating impulse.

                1. Okay and what relevancy is that to the legal issue of whether or not gay people should be able to marry? We let straight people marry, even if they do not intend to mate…

      2. You know how I know homosexuality is a choice?? Because most rational Americans would choose homosexuality over heterosexuality as adults. Heterosexuality in America is very gay and a rational adult would choose a homosexual lifestyle over a heterosexual lifestyle just as Jesus chose to hang out with a bunch of dudes! Hey honey, can you swing by the drug store and pick up monistat and tampons?? And get the super absorbent because it’s a gonna be a HEAVY one this month. 😉

        1. It might surprise you, but look up statistics on what percent of gays or lesbians were molested as teens or children by someone of the same sex. When they say they are coming for your children, they really are coming for your children, through the Boy Scouts, your local public school, or the priesthood.

          1. Young hetero males never kill their girlfriends and wives. And in America domestic violence is actually a public health issue we have been successful at reducing…so Americans in 1900 were probably closer to the Taliban than how we are now. In fact Prohibition and women’s suffrage were related to decreasing domestic violence.

          2. Right, and Jews poison wells, and black males can’t keep their hands off whites women.

      3. And it’s possible to believe that people who believe homosexuals to be mentally ill have First Amendment rights, while at the same time believing that they themselves are the ones who are mentally ill.

        1. From a Darwinian fitness standpoint, a furry who thinks he’s Napoleon reincarnated, but prefers to mate with the opposite sex, has a better claim to “sanity” than a homosexual with no illusions at all. Sanity is kind of a vague notion compared to reproductive fitness.

          It’s all kind of irrelevant, who cares if somebody is nuttier than a fruitcake so long as they support themselves, and don’t aggress against others? The problem is the aggression: Demanding others humor your delusions, or else, demanding that others do your bidding. “Bake the damn cake!”, “Call me a girl or else!” is the problem, not who you want to shack up with, or what counter-factual beliefs you might be carrying around in your noggin.

          1. The Constitution specifically protects citizens that pray and perform rituals to the Horned One!?! I wouldn’t worry about what other people are doing as long as they aren’t breaking any laws.

            And with respect to marriage—I currently have a hetero friend who was mired in an awful time consuming divorce to a woman while his beloved mother was dying of cancer…Jesus failed him by not magically making his wife not a sociopath when the minister made them husband and wife. DO BETTER JESUS!

          2. Biology major here. Let’s see if I can lay to rest the fitness argument.

            Humans live in community, and communities benefit from having a certain number of people who aren’t burdened with children so they can do other things instead that benefit the community. Every communitarian species has individual members that don’t reproduce because they perform other tasks instead. In fact, in the case of bees, for example, most individual members don’t reproduce, but the community does just fine.

            Second, from an evolutionary standpoint, the question with respect to homosexuality (at least male homosexuality) is not why, but rather why not. Sperm is cheap. You can frivolously use a great deal of sperm and still have lots left over for baby making. My father, who had multiple male sex partners over the course of his lifetime, still managed to father seven children. You seriously going to tell me that he wasn’t reproductively fit because he didn’t limit his sex practices to women?

            1. KryKry. Your awful father should not be privileged by the legal system. He should have been killed. I hope your mother did not catch AIDS from the lawyer privileged abomination. I hope you did not catch AIDS from that immoral pure evil.

              1. And Daivd, what a huge blessing it would have been if only someone had told your parents about birth control.

                The bee, he is a busy soul
                He has no time for birth control
                And that is why, in days like these
                There are so many sons of bees.

                That’s B as in Behar.

            2. Famously, having your brother have two extra kids is as good as having one yourself. But I’ve never noticed that gays do much in the way of reproductive assistance, quite the contrary, they seem to disdain ‘breeders’, not see us as taking up an essential task they’ve abandoned.

              Your father was reproductively fit, because he wasn’t homosexual, he was just bisexual. He didn’t refrain from actually reproducing, he just entertained himself on the side.

              My point here is just that the whole concept of “sanity” is pretty ungrounded in objective criteria these days. We’re supposed to pretend that some guy who thinks he’s a girl and has his junk whacked off is sane. Why? Because he’s politically useful, I guess.

              At one time a guy who thought he was a girl would have been viewed as insane on the same exact basis as a guy who thought he was Napoleon, but who wasn’t a short, dead French general would have been: That he held beliefs that contradicted objective reality, in the teeth of evidence. The psychiatric community have abandoned that objective criterion these days, in favor of “Does his check clear?”, which I guess is in a sense objective. Or maybe, “How do we like the politics?”

              I suggest we not concern ourselves with “sanity”, and just concern ourselves with whether people are self-supporting and refraining from aggression. “Whack your junk off on your own dime!”, IOW.

              And bake your own damn cake.

              1. These days, a lot of gay people are adopting kids who exist because of irresponsible heterosexuals, but be that as it may: I didn’t say that gays specifically help with reproduction. Neither do worker bees. What I said is that they perform *other* tasks that benefit the community. It’s the same idea behind priestly celibacy: Not having kids frees them up to put their energies elsewhere.

                As for sanity, the burden of proof is on the person claiming that something is evidence of insanity. If there were a dispute as to whether liking apple pie is evidence of insanity, there’s no question which side would have the burden of proof. Same here. If you want to claim that homosexuality (or for that matter transgenderism) is evidence of insanity, it’s on you to tell us why. And ultimately homosexuality comes down to a personal preference; it’s not that different from preferring banana cream to apple. And the fact that banana cream grosses you out is not sufficient to call it a pathology.

                1. I don’t really think homosexuals are insane, as such. (Trannies, on the other hand? Nuttier than a fruitcake.) I think of them as victims of a neural birth defect; Sexual attraction is neurologically based, and as subject to birth defects as any other physiological mechanism. Homosexuals are the way they are because the part of their brain that’s supposed to direct them towards mating opportunities is broken. That’s not an accusation, it’s just an observation. We don’t deny that humans are bipedal just because some people are missing a leg, do we? Similarly humans have two sexes, and they’re sexually attracted to each other, despite occasional exceptions. Pathology is pathology, even if it’s a pathology of the brain.

                  Birth defects have no moral component, unless I suppose you’d count sociopathy as having one. Saying that somebody has one isn’t an accusation or an insult. I’ve got Asperger’s, and I assure you that it absolutely IS a handicap, (Even if it has compensations.) I’m glad I didn’t pass it on to my son, and I’d take no offense at all if you said I had a neural birth defect. It royally sucks having next to no instinctive talent for social relationships, having to learn to read faces like you’re studying some other species. Having a basically unlimited attention span is nice, though; What’s it like being subject to boredom?

                  Like I said, the real issue here is whether people support themselves, whether they attempt to coerce others.

                  1. And I would disagree that the brain is “supposed to” direct *everyone* to mating opportunities. People don’t reproduce for a whole host of reasons, especially with cheap and readily available birth control. In communities, people do different things to benefit the community, and not everybody needs to be reproducing. And as far as the moral component goes, I’ve never really heard a persuasive argument for what is immoral, or even less desirable, about same sex behavior. The only attempts at it that I’ve ever heard are “my religion” and “ooh ick”. Neither of which is a persuasive moral argument.

                    Plus, I would also argue that the classification is wrong anyway. If you have two men who enjoy getting tied up, one by a woman and the other by another man, I would argue that they have far more in common with each other by virtue of being bondage bottoms than either of them has with non-bondage gays or straights. What you enjoy tells me far more about you than whom you enjoy doing it with.

            3. Men don’t realize their privileges.

      4. Illness is defined as a failure of function. There is one purpose to life, reproduction. Who is more impaired, according to nature, a mentally retarded, cerebral palsy boy in a wheel chair who flirts with girls and would love to sex with them? Or, a homosexual billionaire, who wrote the novel of the century and is discovering the cure to cancer?

  2. Kennedy’s Obergefell opinion might be dumber than Scalia’s Heller opinion…but the outcome is correct in both instances. All Kennedy had to write is that hetero marriages and weddings in America are super gay…and so if we were to outlaw gay marriage then hetero marriage should be outlawed and so a ban on same sex marriage fails Equal Protection Clause analysis.

    Abortion bans also fail EPC analysis because old couples like the Santorums that have unprotected sex over 46 years of age know the two outcomes if conception happens are either an embryo dies a quick death or a baby is born with severe birth defects. So I will say a 6 week period to get an abortion appears to acknowledge that killing embryos is fine…and maybe just prosecute the reckless old couple on child endangerment grounds if the embryo implants.

    1. The difference between Obergefell and Heller, is that at least Heller has a textual basis, despite the dicta taken for it’s holding, about “long standing” gun laws and particularly dangerous weapons (likely the only way to get Roberts on board).

      You sound to me like you’re way out in left field there on whatever your talking about with regard to abortion bans. If you point is that people that shouldn’t have kids due to genetic issues, yet they still have kids, then anybody with a genetic defect (like dwarfism) should be banned from having kids. But they are not, and society wouldn’t go for it these days.

      1. My point is that couples should maximize health of a child at all points of development including upon conception. The Santorums celebrated raw doggin’ it and were humping without protection when they were both over 46 years of age when implantation without a donor egg and doctor supervision is almost impossible…but an old egg can still be fertilized. So if one truly believes that life begins at conception then one shouldn’t be raw doggin’ it when an egg can still be fertilized but implantation is nearly impossible. Raw doggin’ it over 46 is like a parent getting shit faced and taking their toddler to go play on the NJ Turnpike at 5 pm on a Friday—the toddler is either going to get killed or seriously injured.

  3. Prof. Carpenter:

    I assume you are planning a post about the Mitchell/Mortara brief? For your own sake, please don’t read that! If it is too late, for our sake, please don’t blog about it. It’s holy hell.

    1. Mitchell-Mortara?

      That’s superstitious bigot royalty.

      Not sure which is the king and which is the queen, though.

      1. That’s very funny and dead on. I had Adam as a professor. He is a rare combination of brilliance and a Christian crusader. On the intellectual scale, he is more Clement than Eastman. On the political scale, I am tryining to think of the right analogy but he makes Bork seem like Pam Karlan. He is a scary mofo.

        Mitchell is the mastermind behind SB8, which is destined to go down in flames even under this court. That being said, he has succeeded in denying Texas women abortions entriely for the time being. Their brief is beyond the pale.

        1. Do you know what caused the affliction? Was it childhood indoctrination involving substandard parents, or was it is adult-onset superstition and bigotry?

  4. There is, however, one notable brief supporting Mississippi that squarely takes on Obergefell–and much more besides. I’ll have more to say about that in a separate post.

    Robert P. George and Ryan T. Anderson, I suppose?

  5. Or – get this – maybe the two really don’t have anything to do with each other, because they’re completely separate issues? And any connection they do have is due to the game that lawyers play with words?

    This is why the law is an ass.

  6. Would we not be better off abolishing state marriage licensing altogether? Replace is with state record keeping of marriages conducted by civil actors such as judges or religious officials.

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