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Will Dobbs Be a Ticket Good for this Right Only?
What the Alito draft tells us about a possible future for same-sex marriage.
When I was a college senior researching the origins of Griswold v. Connecticut (1965), there was a story making the rounds that one of Justice Scalia's clerks had walked into his chambers and asked the Justice, "What are you going to do about Roe v. Wade?" Scalia was said to have replied: "Roe? That's easy. The real question is, 'What are we going to do about Griswold?'" That summer the rumor proved accurate in at least one respect. Justice Scalia penned a concurrence in Webster v. Reproductive Health Services (1989), arguing forcefully that Roe should be overruled.
What Scalia would have done about Griswold was always a far more theoretical question. States were not falling over each other to ban condoms, IUDs, or the pill. The penumbras-and-emanations test was widely mocked, but the 1987 Supreme Court hearings of Robert Bork had demonstrated that the result in Griswold could not be seriously questioned by a nominee.
Now that the reversal of Roe appears imminent, the question of what the Supreme Court will do next arises once more. Attention is focused mostly on the precedents involving gay rights, like Obergefell v. Hodges (2015), the same-sex marriage decision, and Lawrence v. Texas (2003), which recognized a right of private adult sexual intimacy. These involve matters, like abortion, not specified in the text of the Constitution.
While there are many such "unenumerated" constitutional rights–like those to rear and educate a child, to live with relatives, to resist forced sterilization and medical treatment, and to marry a person of a different race–doubts expressed about their continued vitality seem designed mainly to save Roe by warning of the theoretical consequences of overruling it. There is no significant constituency or movement clamoring to suppress these rights and there is no serious prospect the Court will do so.
On its face, the draft majority opinion in Dobbs disclaims any intent to undermine existing unenumerated rights beyond the abortion precedents of Roe and Planned Parenthood v. Casey (1992).
The Solicitor General warns that overruling [Roe and Casey] would "threaten the Court's precedents holding that the Due Process Clause protects other rights." [Listing Obergefell, Lawrence, and Griswold]. That is not correct… And to ensure our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion.
Draft op. at 62. Many have fretted that the author of the Dobbs draft, Justice Alito, is not to be trusted because he dissented strongly in Obergefell. But Alito is not writing for himself here. Indeed, this passage seems to have been written with an eye on keeping the majority from splintering into discordant concurrences. A harder and purer opinion might not get the signatures of Justices Barrett, Kavanaugh, or Gorsuch. This consideration should ease genuine concerns about aggressive use of the decision immediately to undermine rights to same-sex marriage and private sexual conduct.
Moreover, to justify cabining its decision in this way, the draft opinion points to what it terms a "sharp" and "critical moral distinction" between abortion and all of the other unenumerated rights: abortion "destroys" a "potential life." Draft op. at 32. Even very strong opponents of same-sex marriage grasp this distinction. With a notable exception, few of the amici siding with Mississippi called Obergefell or Lawrence into question.
The possible risks to Obergefell and Lawrence do not really come from overruling Roe, which is why Dobbs does not present an immediate or direct threat to them as precedents. Instead, the long-term perils emanate from two other sources. The first and deepest is the determined resistance of a certain subset of religious conservatives. Unlike with abortion, however, the vast majority of Americans have moved on.
The second risk is what we might come to call the Dobbsian mode of substantive constitutional-rights analysis (which is really a redux of Washington v. Glucksberg (1997)). Tell us, the draft opinion instructs, where are these specific rights in the text? Don't give us talk of "liberty," for that means too many things to too many people. If you can't do that, where are affirmative protections for such specific rights in the granular history and traditions of the nation before the dawn of the 21st century? In other words, the draft opinion offers very little in principle that secures a right to gay marriage or homosexual sex. Gone are paeans to autonomy, dignity, and the mystery of the universe. That sort of judicial rhetoric will go the way of penumbras and emanations. In the Dobbsian world, "new" rights don't stand a chance.
On the other hand, for those who support constitutional protection of same-sex marriage, the Dobbs draft salvages some important elements of stare decisis analysis. It would allow a future Court to write an opinion concluding reluctantly that, even if it was wrong (provided it was not "egregiously wrong"), Obergefell must be preserved because so many gay couples and the families they lead have concretely depended upon it for long-term planning. And Lawrence must be preserved because, if they can marry, same-sex couples must also be allowed to have sex.
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FWIW – I was a proponent of enacting same sex marriage statutes into the states family code several years before ogerfell for the simple reason that for all practical purposes there were gay marriages and those parties to those gay marriages needed some form of law to protect and govern the property rights of those gay couples. At the same time, I recognized that while gay marriages share many of the concepts of hetrosexual marriages, there remains separate and distinct difference.
The problem with ogerfell is that it overrode the democratic process and the legal reasoning allows for the overriding the democratic process to achieve any result desired or preferred by judges.
The Congress enacted the Marriage Protection Act. The Supreme Court imposed its lawyer delusion elevating what will never be more than a friendship to the legal status of a marriage. Furthermore, homosexuals spotted the lawyer trap for the productive party in this friendship, and have stayed away from marriage. It was not a homosexual idea. It was a lawyer idea seeking more divorce business.
Divorce court is the absolute worst genre of legal representation. Nothing brings out irrationality like terminating a marriage.
Is there anything about marriage that is terribly rational?
If you are happily married, yes.
Well, happily married is indeed a fortunate state, but not one guaranteed for the institution of marriage in general.
Bored. The Sheriff of Chester County was on the radio. The court metal detector is not for the trials of the murderers, drug dealers, bank robbers. It is for Family Court. People go insane, and come in blastin’.
That’s the problem with Roe.
Equal protection and the lack of a rational basis for a state to care if two gay people get married.
They might have a rational basis to propose procreation but banning gay marriage doesn’t make gay people any more likely to have kids.
On the contrary, it provides an adoptive family for babies who can no longer be aborted.
Ah, rational basis – if only that actually meant what those words seem to imply. Griswold had been sustained by the lower courts on exactly that basis; it was only when SCotUS got hold of it that we were off to the races.
The fact is that it is our expansion of the police power, often for what seemed like the best of intents – to make people better, that led to the state intervening in matters for which it had no truly rational basis to do so. Vice laws are the worst form of democratic tyranny – because they satisfy that lust for power that C.S. Lewis warned about.
If the Court overrules Roe, that means no more abortions in the future. For good or ill, we know how to do that. But the problem with trying to overrule Obergfell is that you can’t unscramble the eggs. By Census Bureau estimates there are over half a million same-sex married couples and almost half a million same-sex couples living in what we used to call sin, spread all across the land. A decision undoing all those marriages, or allowing a state to refuse to recognize them as marriages, is unthinkable. Is it conceivable that a decision would allow states to “grandfather” currently-married same-sex couples but refuse to permit further same-sex marriages?
Or at least so I hope. But I am no longer as sure as I once was.
I’m still pretty sure. The people popping off about the threat to Obergefell haven’t really thought beyond level zero of constitutional analysis: “Alito doesn’t like Obergefell either!”. They haven’t thought about where the 5 votes will come from, or what states will actually attempt to bring a test case, or whether the Court will even grant cert, etc.
And they certainly haven’t thought at all about the fundamental fact that judges- ALL judges, even the most conservative of them- care a lot about the court system and the operation of the courts, and an argument that says “you are going to throw half a million marriages plus millions of contracts, wills, estates, child custody and adoption arrangements, life and health insurance policies, and property deeds into chaos and we’ll be litigating this for 20 years” is VERY powerful even to conservative judges who don’t think much of gay marriage. Especially when you factor in how unpopular it all would be.
” conservative judges who don’t think much of gay marriage ”
Why the political correctness? Why not refer to them straightforwardly as bigots?
Because Dilan isn’t into performative assholery like you are.
They’re about to open the floodgates of both civil and criminal cases related to reproductive health and lower courts and the Supreme Court is going to be dealing with the fallout of this for years.
So I don’t think the prospect of screwing up marriages because of the administrative burdens is a real limitation. The issue isn’t going before a council of Probate and family court judges. It’s going before a Supreme Court with a discretionary docket. They can end SSM and then ignore everything after as an issue for the states.
I also don’t think it’s going to take much state action. All it takes is for one clerk somewhere to deny a license to get a case rolling.
They’re about to open the floodgates of both civil and criminal cases related to reproductive health and lower courts and the Supreme Court is going to be dealing with the fallout of this for years.
People have said this to me on Twitter, but it’s really wrong. There are lots of jurisdictions that ban abortion in the world. I don’t like those laws. But they don’t actually present the sort of issues ending gay marriage would- they just present typical legal line-drawing issues such as “was this a miscarriage or an abortion?” or “was this fetus over 12 weeks?”.
That’s not at all comparable to the administrative burden of ending gay marriage. And- SUPER IMPORTANTLY- a CONSERVATIVE justice will see that as a much stronger argument on gay marriage, because they aren’t liberals trying to make up arguments about why Alito is threatening our rights on Twitter, but actually trying to weigh how they may feel about an issue (they feel stronger about abortion than gay marriage) against the administrative burden (orders of magnitude higher on gay marriage than on abortion).
“they just present typical legal line-drawing issues such as “was this a miscarriage or an abortion?” or “was this fetus over 12 weeks?”.
Those are extremely tough questions! And they’re about to be placed in the hands of 1000s of independently elected district attorneys across the country.
Marshae Jones was indicted for manslaughter in the most populous county in Alabama for having a miscarriage for starting a fight where someone else shot her causing her pregnancy to end.
With respect, a lot of the “people” on Twitter who have said this are highly accomplished attorneys, particularly criminal defense attorneys, who know the worlds in which they work quite well. So when they say prosecutors are going to start charging cases on this, maybe you should believe them. (And this isn’t even including the civil litigation about what constitutes an abortifacient or a permissible contraceptive, personhood bills, adoption issues (yes if abortion is gone adoption is going to sky-rocket), paternity issues, termination of parental rights issues, etc. etc.)
With respect, a lot of the “people” on Twitter who have said this are highly accomplished attorneys, particularly criminal defense attorneys, who know the worlds in which they work quite well. So when they say prosecutors are going to start charging cases on this, maybe you should believe them.
Nice way to change the subject. We were talking about gay marriage.
No. I’m on topic. Let’s recap:
You assert that they won’t overturn SSM because the administrative burdens and reliance issues are too great.
I respond that that won’t actually stop them because overturning Roe is going to result in massive administrative and legal burdens everywhere, so I don’t see why they would care if it does for SSM.
You respond that you people on twitter are saying that and that they’re wrong. You say, and I quote, “they just present typical legal line-drawing issues such as ‘was this a miscarriage or an abortion?’ or ‘was this fetus over 12 weeks?’.”
I respond that that’s still wrong and that these very questions are going to cause massive changes and maybe you should listen to the experienced practitioners who know what they’re talking about.
You say I’m changing the topic.
Yes, because I’m not talking about whether questionable prosecutions will be brought, but whether a CONSERVATIVE will find the adminstrative burden argument more compelling in the area of gay marriage. Every smug word you typed about defense lawyers and everything else has NOTHING to do with that point.
It has everything to do with the point! The point is that the justices know they’re creating massive burdens by overturning Roe. They still don’t care. And those burdens are real. So they’re not going to magically be convinced by these arguments for SSM.
Also the guy who wrote this, “People have said this to me on Twitter, but it’s really wrong. There are lots of jurisdictions that ban abortion in the world. I don’t like those laws. But they don’t actually present the sort of issues ending gay marriage would- they just present typical legal line-drawing issues such as “was this a miscarriage or an abortion?” or “was this fetus over 12 weeks?” shouldn’t be accusing other people of being smug.
Nothing is more smug than telling experienced people that they’re wrong and the questions are actually “typical” without anything to back that up other than a gut feeling.
“smug word you typed ”
Its the only type of words he knows.
Smug still beats unprincipled immoral sadist whose commitment to human decency is completely lacking.
I don’t like SSM being imposed on the nation by judicial fiat, over multiple desperate efforts to stop it by the democratic process. Let’s face it, it didn’t come out of an organic change in public opinion, it was driven by a judicial fad that steamrollered public opinion, followed by public resignation.
As a policy, though, my only real complaint was the obvious fact that they’d never be content with just allowing SSM. No left-wing victory is complete without forcing those opposed to it to become complicit in some manner. It was absolutely engraved in stone that Obergefel would lead to everybody in the marriage related industries being forced to take part, or else.
If the Court could stop, reverse, the cancerous growth of public accommodation law, anti-discrimination law in general, the culture wars could be reduced dramatically. Guys who feel like calling themselves girls getting to compete in women’s sports? (Again, or else.) It’s getting insane out there, and I don’t mean figuratively.
How can they disallow SSM without also disallowing mixed race marriage? Both are protected classes.
Hell, Gorsuch wrote an opinion 2 years ago in a case that extended protection to people based on sexual orientation. The decision was 6-3 in favor of that. They’re not going to overturn SSM.
It’s easy from an originalist standpoint: Allowing mixed race marriage, which had a long history of legality anyway, was an anticipated result of the 14th amendment, and an actual result until the Slaughterhouse Court shut it down along with the rest of 14th amendment enforcement.
By contrast, SSM was legal essentially nowhere in the world until this fad started, it wasn’t anticipated application of ANYTHING.
But I didn’t say overturn SSM. That’s not happening at this point. I said, stop applying public accommodation and anti-discrimination law to it, forcing people who want nothing to do with it to be involved.
Civil rights law went down a very dark path with the 1964 Civil rights act, when they mandated private non-discrimination, instead of just implementing equal legal rights. We’ve been walking down that path ever since, and it’s making civic peace impossible, because you can’t just agree to disagree, the loser gets forced to involve themselves in what they object to.
Imagine for a second that Heller had led to stores being mandated to sell guns. That’s about the way the left treats IT’S legal victories.
You can’t engage in false advertising—the definition of “wedding” is the joining of two people in marriage. Obergefell wasn’t even necessary because nowhere did the definition of marriage explicitly state exactly one pee pee and one wee wee had to be involved. So prior to Obergefell one individual could have decided to be the female and one individual could have decided to be the male.
No, the definition was the joining of a man and a woman in marriage. Marriage laws didn’t typically say you couldn’t marry your toaster, either. SSM was so far off the radar screen nobody even dreamed they’d have to be specific about such a thing.
Weren’t there already over 30 states that legalized homosexual marriage?
That was one of the data points, that should have told SCOTUS to back off. Let the people do the work.
There were, by the time Obergefel came out, but that was a result of the lower courts refusing to let states not legalize it. Few states had voluntarily legalized it prior to that ruling, in most of those states the judiciary had mandated it, often in the teeth of ballot initiatives and state constitutional amendments.
Obergefel wasn’t the revolution, it was just a mopping up operation after the lower courts had already won the war.
Esper — The draft decision makes nonsense of the points you offer in your second paragraph. The draft decision either violates your reassurances, or lays out a roadmap to violate them.
You also ignore the malice driving politics about these issues. Among opponents of gay marriage—strong majorities in multiple states—chaos for gays is at least a notable plus, if not also God’s will.
This nation has not suffered its culture war because folks love principled reasoning about culture-war issues. The culture war has never been about reason; it has always been about mustering political power to vindicate hatreds. Right-wingers will not be reasoned out of their victory.
Stephen:
Read page 5 of the draft. You’re just flat wrong about what it says.
“If the Court overrules Roe, that means no more abortions in the future. ”
No, it means no more abortions in about half the states, and more abortions in the other half, from people travelling there.
Yes, of course, but I figured that was too obvious to mention.
Bored Lawyer — During what time frame do you expect that to continue undisturbed as the status quo? I expect a national federal abortion ban to show up immediately, as a political agenda item, used as an organizing tool on the right. Right wing politicians will not willingly sacrifice the abortion issue while any shred of it remains to be attacked—or to be used to mobilize campaign money.
It doesn’t even mean no more abortions in about half the states. More like, no more elective abortions after an early stage of pregnancy, in most of them.
Medically necessary abortions? Still legal in all of them.
an early stage of pregnancy
Like a nanosecond, see Louisiana.
Here’s the Louisiana bill text. Find me the “life of the mother” exception.
https://www.legis.la.gov/legis/ViewDocument.aspx?d=1276214
Ҥ18. Justification; general provisions
The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(6) When any crime, except murder where the victim is not an unborn child, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present
and would immediately carry out the threats if the crime were not committed; or”
I’m interested in what came after that “or”; It seems the law was cut off in mid-sentence.
I believe under the terms of this law, abortion is still permissible in self defense, though expressly not under duress. But, of course, that’s dependent on what came after the “or”.
The ectopic fetus is making a “threat”? I mean, maybe there’s support for this, but if I’m a doctor asked to perform that abortion, I’m not feeling particularly secure, particularly since the bulk of that language predated this amendment. It reads a lot more to me like the “threat” has to come from some actual sentient person.
You can kill somebody in self defense even if they don’t threaten you, if it’s the only way to save your life. Such situations don’t come up often, but they exist. Like, suppose you’re tangled up in an electric line, and you see somebody unaware of your situation trying to turn the power back on. Doesn’t matter that they don’t mean to electrocute you, if the only way to stop them is to kill them, you can.
When you’re suggesting that a legislature is taking an anti-abortion stance that’s actually stricter than the Catholic Church, you should look closer. I won’t say that nobody would oppose an abortion genuinely necessary to save the mother’s life, but they’re at a Peter Singer level of extremism, that position has no popular support anywhere.
they’re at a Peter Singer level of extremism, that position has no popular support anywhere
Somehow such a person became a U.S. senator.
https://twitter.com/notcapnamerica/status/1522209940382928898
No; it’s a fake story. He didn’t say that.
Colucci — You know what is thinkable? A decision that states are free to outlaw gay marriage, because gay-married people remain free to move to states (or other nations) where gay marriage remains legal.
Also? Arguments that state sovereignty wins a balancing test against a little bit of inconvenience for a small minority of married gays. Who, by the way, have no constitutional right, as the principles announced in the overturn of Roe demonstrate. You are not suggesting are you that these always-illegitimate marriages—unprotected by the law, and abominations in the sight of God, remember, which should never have been permitted, as the Court has now decided—are somehow an infliction which states must endure permanently?
While there are many such “unenumerated” constitutional rights–like those to rear and educate a child, to live with relatives, to resist forced sterilization and medical treatment, and to marry a person of a different race–doubts expressed about their continued vitality seem designed mainly to save Roe by warning of the theoretical consequences of overruling it. There is no significant constituency or movement clamoring to suppress these rights and there is no serious prospect the Court will do so.
Thank you for that bucket of cold water. The rhetoric we have been hearing since THE LEAK is overheated, to put it mildly.
The individual RKBA is not enumerated and Stevens’ came around a little too late to understanding how liberal justices whiffed on strengthening the right to privacy by incorporating the the right to self defense with a gun in one’s home into the right to privacy. So Heller/McDonald should be overruled but the outcome of those cases should be preserved.
“The individual RKBA is not enumerated”
“2”
So why was McDonald necessary?? The 2A apparently was drafted as an individual right that only applied to citizens in DC and federal territories…such a head scratcher.
McDonald was necessary because the Supreme court spiked incorporation of the entire Bill of Rights with the Slaughterhouse cases, and after Brown had only started incorporating those right piecemeal, instead of properly as a whole.
It was basically made necessary by the Supreme court’s own earlier judicial malfeasance, not that they were about to admit that.
Your crazy notion of where the 2nd amendment applies is noted, it has already been adequately refuted many times now.
Lol, nobody has ever refuted me. Cruikshank is right and everyone knows it. You people are nitwits.
“to resist forced sterilization and medical treatment,”
Now explain the vaccine mandates, slowly and carefully. “We” clearly do not have that constitutional right, just some of us, at some time, in some cases.
Well, tearing down George Washington, Thomas Jefferson, and other statues at one time was not considered serious either. I think that there will be a constituency advocating for overruling Obergefell v. Hodges.
Slippery slopes are often more slippery than people expect.
Laws against contraceptives of several kinds are a slam-dunk follow-on, with allegations that they work as abortifacients. There will certainly be religion-driven pressure to enlarge any such principle, to include all contraceptives.
In the states where those issues play big, majorities among swing-vote citizens are not required to muster strong majorities among politicians—a primary-swing-vote-sized subset can command universal assent from politicians. So potent political pressure to go beyond abortion issues seems assured.
“There will certainly be religion-driven pressure to enlarge any such principle, to include all contraceptives.”
And you think, seriously, that has a chance of becoming law in all 50 states?
No, but it is reasonable to expect the Court’s Republicans to try to enable the uneducated, backward states to prohibit contraceptives, and the shambling states to embrace that opportunity.
Do you spend much time with the superstitious, poorly educated, roundly intolerant human residue that remains in our can’t-keep-up backwaters after generations of bright flight?
All 50 states? No, probably not. Enough states to make a lot of people’s lives hell? Yes.
Enough states to make a lot of people’s lives hell?
A lot of people. That moves the issue into VP Harris’ domain of finding root causes. Need to get that number down from ‘a lot’ to a few.
Google Translate is not helping me at all here, so if anyone wants to explain this gobbledygook, please do.
Considering there is no rational basis on which to enact such legislation – if of course rational basis wasn’t a figleaf for any stupid thing a legislature decides (as was the case for Griswold right up until Douglass’ acid trip of an opinion).
Laws against contraceptives of several kinds are a slam-dunk follow-on, with allegations that they work as abortifacients. There will certainly be religion-driven pressure to enlarge any such principle, to include all contraceptives.
Even beyond the fact that no, attacks on contraceptives are highly unlikely and Griswold isn’t going anywhere, I don’t see how this move even gets through Obamacare, which has a fricking contraceptive MANDATE in it. The state can’t ban a medical treatment that Congress has said insurance companies must pay for. There’s obvious preemption issues here.
Louisiana has already advanced, on a committee vote of 7 to 2, a bill that would define as murder any killing of any embryo from fertilization on. That covers a bunch of birth control methods, as Stephen says. Unlikely that Louisiana will be the last state to pass this sort of ban.
As for whether Obamacare preempts it, I don’t agree that it’s a slam dunk. The states will simply argue that insurers have to cover contraception where it’s legal and that the ACA didn’t address which contraception methods states can regulate.
I don’t actually think that statute does cover contraception. You can’t prosecute a murder unless you can prove that the killing took place. But the way contraceptives work, you can’t actually show they destroyed a fertilized egg.
And while the state can argue anything they want, it’s frivolous that a state can ban any product the federal government requires an insurance company to purchase. Louisiana has no power whatsoever to interfere with the operation of valid federal statutes.
You’re a Louisiana doctor/pharmacist. Think you’re going to prescribe/sell these types of contraceptives once this law passes? I’d say no.
The statute is not specific about what types of contraception must be covered. The regs are. Regs can be changed a lot more easily than statutes.
I suppose a city could declare themselves sanctuary cities for such medications. Laws anymore seem like more of a suggestion
I think a Louisiana HMO will follow federal law and stock them in its affiliated pharmacies.
Oh. Conservatives on the court that famously loves the ACA are going to find it preempts state contraceptive regulation. Sure.
Obamacare was last affirmed 7-2. Before that 6-3 and 5-4.
For some reason, this leak has brought out utter dishonesty among liberals online, because they are attached to their talking point that the entire Republican Party is like a cross between the Duggar family and the Handmaid’s Tale.
That’s only because the theories for overturning the ACA got dumber and dumber. We are talking about a narrower preemption issue…which is a whole different ballgame.
So Alito’s going to take this all the way to gay marriage and contraception because he doesn’t care about the fact that the theories are dumber. But the ACA challenges keep failing because the Court does?
This is all just catastrophizing BS. You decided that you were going to say that Griswold and Obergefell were in jeopardy whatever Alito said, and you are just moving the goal posts wherever you need them to do it.
I literally didn’t say ANYTHING about that on this thread. I simply am pointing out that your belief that concepts like administrative burdens and preemption under a law they don’t really care for are not going to be real roadblocks to doing what they want in the future.
I have no idea what they will ultimately do with SSM or contraception or sodomy. But I do know that trying to use formalist legal and practical logic on this is myopic. You can call it catastrophizing BS if you want, but it’s simply a realist acknowledgement that the things you think might matter to this majority are much less convincing than you think they are.
Esper, you are talking about state legislatures which passed flagrantly unconstitutional anti-abortion laws with an eye to defiance. And you suppose after an extra jolt of vindication from Alito they will turn reticent? Really?
Maybe because they pay attention to the bills that are advancing/being passed in Republican states?
A few years ago people were like: “oh they’ll just use TRAP laws and gut Roe/Casey or pare it back to 15-20 weeks. And no GOP legislature is going to let rape or incest victims be forced to give birth. And if they do the courts will stop it. Everything else is catastrophizing” This was despite an open and obvious effort by conservatives to end Roe and increasingly militant rhetoric from the right.
Well now we’re a few short weeks away from Roe being completely overruled allowing abortion bans lacking rape/incest exceptions to go into effect.
And people are still saying they’re catastrophizing about what might be next. Lucy with the football.
“I don’t see how this move even gets through Obamacare, which has a fricking contraceptive MANDATE in it.”
It, in fact, has no such thing in it.
It has a preventative care MANDATE in it, which was not interpreted as covering contraceptives until after it was enacted, and which could be reinterpreted as not covering them again, as soon as conservatives were in a position to order it.
You catastrophizing liberal, Brett! Dilan is here to tell you no such thing will happen.
Right now, it’s a contraceptive mandate, and it preempts state law.
Yes, I’m just saying it’s not a statutory contraceptive mandate, it’s a regulatory contraceptive mandate. It wasn’t to be found anywhere in the ACA, the ACA just served as an excuse for imposing it.
It would be like referring to the ACA’s toothpaste mandate. It doesn’t have one, but you could lean on brushing your teeth being preventative medical care, and use the ACA as a basis for mandating that health insurance cover free toothpaste.
Wasn’t the rule only about what insurance has to pay for? That’s separate from what pharmacies have to sell.
” The first and deepest is the determined resistance of a certain subset of religious conservatives. ”
There is plenty of support for positions favored by the religious at this blog.
There is strident support for bigots at this blog.
Superstitious gay-bashers? At the Volokh Conspiracy, they can expect ‘most favored clinger’ status.
We are in the era of Constitutional Calvinball. Reasonings that are valid today might not be valid tomorrow. It is all about giving your side the win. Republicans have been vocal about gay rights for a long time. Also remember when the nominees would not even say if they supported Brown v Board. SCOTUS is also about to eliminate the protection that students had not to be coerced into prayer at school. No past decision is safe.
But what about Buck v. Bell? Does abandoning Roe have the effect of expanding state powers under Buck?
You’re correct about the gay marriage/sodomy decisions. As egregiously wrong as they are, the reliance interests arising from those cases counsel against overturning them via judicial fiat.
Under what constitutional principle do the states have the delegated authority to prevent gay marriage or sodomy?
Too much of the discussion, it seems to me, is framed in terms of what the states will let us do. This is exactly backwards. It should be – and is, according to the Constitution itself (“RTFC”) – about what power We have delegated to the Federal government and, per 9/10/14As, to the states. Ties go to the dealer – and We are the dealer.
Unlike the federal government, the states do not derive their powers from delegated authority in the constitution. The states have a general police power.
Sadly, that police power seems to have been much less expansive in the late 18th century than it became early in the 20th.
I bet there are a lot of gay couples that secretly want Obergefell to be overruled…it would save a lot of money on divorce lawyer fees. As a hetero I’m hoping straight marriage is banned too by the Supreme Court. Be careful what you wish for. 😉
Just curious as to how many same sex marriages there are where this “reliance interest” resides?
Married couples and their families typically don’t have the state invalidate them out of nowhere one day. That’s an extremely strong reliance interest.
You might want to talk to polygamists about that.
Swing and a miss: they don’t have legal status unlike same sex marriage.
That would come as a shock to polygamists immigrating to the US.
“There is no significant constituency or movement clamoring to suppress these rights and there is no serious prospect the Court will do so.”
and
“Obergefell must be preserved because so many gay couples and the families they lead have concretely depended upon it for long-term planning.”
I think that there’s a good argument to be made for the reliance interests that go along with a ruling like Obergefell, and that the courts would leave the decision in place under this aspect of the principle of stare decisis.
I don’t find the first quoted paragraph here at all compelling, though, as an argument for why rulings like Lawrence and Obergefell might survive. One of the central principles of many legal scholars who advocated for overruling Roe is precisely that constitutional analysis should not be subject to concerns about majoritarian rule or popular opinion. It doesn’t matter what the people think, the argument goes; judges are supposed to do what the constitution requires.
Under this principle, overruling Lawrence or Obergefell would not require some sort of “significant constituency or movement clamoring to suppress these rights.” All it would require is a few dozen inbred legislators in some backwards, redneck, sister-fucking shithole of a state to pass a new law banning sodomy or same-sex marriage, and then start arresting people for gay sex and threatening county clerks so they stop issuing marriage licenses.
The case would then work its way up to the Supreme Court, and under the principles enunciated in Alito’s draft opinion, those cases could be reversed. Reliance interests might save them, but they might not.
…an awful lot of speculation about what might happen based on a leaked draft of a decision that has yet to be announced.
Does anyone really think that the overruling of Roe v. Wade and Casey would actually lead to States banning same-sex marriage or birth control?
When I was practicing law, one of the arguments you had to consider making (or refuting) was the “parade of horribles”: If the court rules against our position, these following TERRIBLE things will happen!
These arguments are almost always ineffective, because they’re almost always wrong.
Gay marriage? Anti-sodomy laws? Prohibition of birth control? Sure, in theory, the same kind of fallacious reasoning that supported Roe v. Wade was used in the cases overruling local/state laws dealing with Gay and birthcontrol issues. But where’s the political support for banning birth control or Gay marriage TODAY? I grew up in Connecticut pre-Griswold; every pharmacy I knew had birth control material for sale, but the items weren’t on display, and you had to ask. I lived in south Florida for several years in the early 2000’s, when Gay marriage wasn’t recognized, and I knew a lot of Gay couples who considered themselves married (and a few who were happy NOT to have to make a commitment). If the Supremes were to allow the people of the several States to decide these issues, I don’t imagine that the results would be as awful as some commenters claim it would be, even in Florida or Connecticut.
But unlike abortion, no human being dies as a result of legalizing Gay marriage.
But unlike abortion, no human being dies as a result of legalizing Gay marriage.
Which is the big difference so many choose to ignore.
Professor Carpenter,
I’ve disagreed with you over the years, and you don’t have to like me. But what do you think of the idea that in light of the Alito Dobbs opinion adapting both the reasoning, the standard, and a good deal of the rhetoric of Justice White’s majority opinion in Bowers v. Hardwick, together with Bostock’s including 2 current conservative Justices (Gorsuch and Roberts) in its majority, the two can be recomciled and make some measure of sense if the court adapts Justice O’Conner’s concurring opinion in lawrence.
Justice O’Conner had signed on to the majority opinion in Bowers. But in Lawrence, she took the view that the Equal Protection clause prohibits same-sex only sodomy laws like Texas’. In her view, states can enforce sodomy laws and they are constitutional as long as they apply equally to both sexes.
Under this view, the Obergefell result would probably stand, but the reading behind the result would be based exclusively on the Equal Protection Clause rather than the Due Process Clause. But the Lawrence result would change substantially. Following O’Conner’s view, states could criminalize sex outside of marriage to their hearts content, as long as they didn’t criminalize exclusively same-sex sex acts. Thus the situation would be the opposite of the one between Lawrence and Obergefell. Gay marriage would be mandated, but sex outside of marriage could be prohibited.
This is not a slam dumk prediction. As one critic pointed out, Bowers was a textualist opinion, while the criticism of Roe has been originalist. But to the extent Gorsuch and Roberts are looking for a way to reconcile personal gay rights views with a natrow view of the Court’s authority under the Due Process clause, the O’Conner concurrence would seem a potential way out.
Of course, one could ask why the court couldn’t do the same thing with Roe. Why not just shift its justification from the Due Process clause to the Equal Protection clause and leave the result mostly intact? The Alito opinion makes a special effort to flatly foreclose this approach, characterizing abortion as a sex-based medical procedure and sayimg that pro-life motivation is not anyi-women. In this respect, perhaps abortion really is different.
What fo you think of this?
I should clarify that this is an attempt to predict what the conservative members of the Court (and hence the Court majority) will do given their votes in other cases in recent years, not an expression of my personal view of what they should do.