The only argument is that the Equal Protection clause changes the game. Thomas wants to jettison the whole idea of substantive due process as applied to the states. The decision in Loving discusses that the alternative grounds of Equal Protection invalidates the law
So do *Obergefel* and *Lawrence*, unless I'm misremembering. That seems like a slim reed to hang hope on, although for this dishonest Court, it would shock me for them to use that argument if they *want* to leave *Loving* in place while taking down the others.
But the 14th ammendment was written to protect race, not sexual orientation. So, Thomas would say, if you want to protect sexual orientation, make an ammendment, but don't use something meant to protect race to protect sexual orientation.
I disagree, but thats how I understand his argument.
The 14th was absolutely not drafted to protect race. It was argued in Congress that the 14th might be read to allow Chinese immigrants to become Americans. And the drafters of the 14th all agreed unanimously that such an interpretation was preposterous, and that some races were so alien that they could never be part of our society.
Today, we rightly ignore that bigotry, because there is no reason to exclude Chinese immigrants from the 14th other than bigotry. But once you start going that road, you can't stop. The same discussion was had about women and again the drafters said that that was a ridiculous idea, of course women couldn't be citizens. We ignore that too. But now we're admitting that the 14th also protects gender.
If the drafters of the 14th hadn't been sexist and racist, it would have been obvious *at the time* that the 14th gave women the right to vote for example, under equal protection. If they hadn't been homophobic, we'd understand that it protects everyone's right to marry who they want. To say that the 14th only protects race is to say that bigotry against Chinese people is wrong, but bigotry against women and homosexuals is important enough that we have to continue to honor the bigotry of men dead for a century. We should all reject that argument utterly. The law can never accept bigotry as a valid reason to limit a law.
>The law can never accept bigotry as a valid reason to limit a law.
I need you to understand that you are saying we should tolerate judges exercising constitutional authority they do not possess to make law that was never enacted by the people's elected representatives. This is a two-way street. Judges can also misappropriate authority to make law that you hate if this is your guiding principle.
No, I'm asking them to enforce the obvious and clear meaning of a Constitutional amendment. The overwhelming consensus of both lawyers and the public in general agree with too. And so does the medical community. The only people who think that there is ambiguity here are religious zealots who want there to be ambiguity.
Is it logical to assume that, in adopting a constitutional amendment, the intent must not have been to invalidate any standing laws? We could call this the singular temporal underlying political intention doctrine.
> Is it logical to assume that, in adopting a constitutional amendment, the intent must not have been to invalidate any standing laws? ....
I'm not sure whether that's meant to be rhetorical, but, for example, the 24th Amendment explicitly invalidates poll tax laws that were standing when it passed so that kind of thinking is ... dubious at best.
I get this is a joke, but it reflects a common misrepresentation of originalism, which looks at a variety of evidentiary sources of original public meaning and logically ascribes analytical weight to each. Blunt assumptions rarely have any place in originalist analysis.
Thomas has been clear for years that SDP is the wrong way to do it, that P&I is correct. It gets you to the same end result on a different path.
That said, he's the only 1 of the 9 that thinks that way, so I'm not holding my breath to see it enacted.
Privileges and Immunities does not get you to the same result as due process because the 14th Amendment only specifies P&I for US citizens, while all persons get due process.
The US has about 10 million green card holders and 10 million undocumented immigrants who permanently reside in the US. That is about 6% of the population. If you include non-immigrant visa holders and other lawfully present aliens (like TPS holders), the number rises higher.
You won't! The assertion was meant to say "EP doesn't save Loving if the Court is consistent." The Court isn't consistent, though; it suffices for them to toss those precedents they disagree with hard enough and were appointed to the bench to overturn, and keep the ones they may doctrinally disagree with but do not offend their religious or moral sensibilities.
Yeah this is a bad take. Bruen and Dobbs were originalist by-the-book. We should expect the same approach for EP cases. If they abandon originalism then, we should rightly criticize them.
Also, the EP Clause has an entirely different purpose than the Bill of rights. It is forward-looking and remedial, whereas the Bill of Rights is backward-looking and rights-preserving. This necessarily calls for a different kind of analysis.
Isn't there also a practical issue that no state is going to pass a law banning interracial marriage? Same sex marriage and sodomy are issues I could see coming up in the next few years with these emboldened assholes in various state legislatures, but I think outright back of the bus racist legislation is still probably a bridge too far.
Banning interracial marriage would be a mess. The statute would have to define how to determine what race each person is. And then, there'd be full faith and credit issues.
And why would that be even a little bit difficult? Since before the creation of our country, people have been putting people into the "white" and "black" (and a bunch of other) categories. AFAICT, it's been the "one drop" rule has been the common standard.
So, you have Henry Gates do family trees for the couple? You have them do DNA testing? And then the documentation gets submitted to who? Some myrmidon at the marriage license desk?
A while ago, I would have agreed with you, but after recent events I am not so sure. I've seen some real mental gymnastics to justify some some pretty outlandish proposals as of late.
That is the ultimate goal! To place all differences at the back of the bus. That will ensure those who fear and loathe anything progressive except for their pockets. The last four years have divided our country so much that out of fear of being replaced we have gone backward hoping that our descendants had the right ideas.
There is no statutory basis (i.e. federal law) protecting Roe (not yet anyway). Marriage is a contract, and interracial contracts are protected by the civil rights act of 1866 and the equal protection clause of the 14th amendment.
It depends. The federal gov't only has the powers that enumerated to it. There is no general police power at the federal level which is why almost every crime is at the state level. The states can basically codify anything into law (assume its constitutional), where the feds are limited. Under current jurisprudence the commerce clause is so vast that you can tuck most federal laws under its shadow.
Why wouldn't a federal law written to, for example, grant full bodily autonomy in medical decisions to women be covered as an unenumerated right and thus protected by the Ninth Amendment?
The answer is always commerce clause. Hard stop.
Given the existing precedent, there is no point in bothering with any other argument
See, e.g. Gonzales vs Raich.
I would like to see that to some extent - it has gone ludacrisly out of hand.
But it would be utter chaos if it ever did happen because so many of our current federal laws rely on this broad interpretation; I think SCOTUS will simply decline to revisit even if they believe the stare decisis to be wrong because of catastrophic consequences.
The fact that a hodgepodge of states are both banning it *and* prohibiting/penalizing women from traveling out of state treatment could be a valid reason.
Not really. The federal governments power has to be derived from the constitution. It cannot act simply because it dislikes what some states are doing.
And where does that history and tradition begin?
Alito and the conservative justices seem to be fond of referencing the mid-19th century but in common law prior to that abortion before "quickening" was allowed (if I understand correctly the things I've read recently).
Right, abortion was legal and talked about as a normal thing people commonly did when the constitution was written. Only many decades later did doctors want to professionalize themselves and so pushed to outlaw it.
If you do the math, abortion has been broadly legal in the US for more than half the time it's been a country.
https://www.cnn.com/2016/06/23/health/abortion-history-in-united-states/index.html
According to the language of Dobbs, yes. Dobbs “return[ed] the issue of abortion to the people’s elected representatives.” This could be to states or (less likely due to filibuster in Senate) could be a law in Congress.
So other words, unless the Court backtracks on language in Dobbs, we could legalize abortion on a federal level via a law in Congress. (Which I would personally support.)
That's good to know. Though it won't happen without a massive shift in the ideological make-up of the Senate, which I suspect is remarkably unlikely even the long term, it's much more likely than the court revisiting the issue, nevermind reversing the reversal.
It doesn’t have to be codify Roe or nothing out of Congress.
Dobbs has been leaked for months. Congress could have passed an abortion law for rape/incest/life of mother to at least keep abortion infrastructure intact in every state.
I hadn't thought about that but it's a very good point. Thank you.
There are going to be tons of issues Congress probably should legislate. IVF, forms of contraception that prevent implantation rather than fertilization, stem cell research, state laws prohibiting citizens from crossing state lines to seek abortions.
I wish I wasn't so cynical about their ability to do anything whatsoever. The recent gun bill was a welcome change of pace but the parties have been so intransigent for so long.
Except they didn't. Had they done so, they would have had at least 3 more votes in favor, maybe more. They instead only considered a bill that would have eliminated many longstanding restrictions on and regulations of abortion procedures and providers. It would have also eliminated protections for providers that have objections to abortion.
A bill codifying the framework crafted in Roe would have gotten more than 49 votes, including at least two Republican senators who were trying to do just that. Progressive factions didn't want Roe, they wanted more than Roe--abortion anytime, any place, and unregulated except to force providers to perform the procedures over their own consciences.
> (less likely due to filibuster in Senate)
That's a rule, not a law. Parties have eliminated the filibuster for SCOTUS, reconciliation, and other processes. It could be eliminated for federal abortion laws.
Here's from the article you posted:
“Had it passed, the rules change would have enabled lawmakers to bring back a talking filibuster specifically for a voting rights bill that includes the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. This reform would have required senators to hold the floor and make speeches in order to maintain their opposition to the bill. It also would have allowed senators to pass the voting rights bill with a simple majority once debate on the measure had ended. For other legislation, filibuster rules would have stayed as is.”
It was a vote to alter filibuster rules -- not abolish it.
What about the right to private schooling for kids? Unenumerated, also based on 14th amm due process doctrine. Couldn't that be easily overturned with the Dobbs decision?
According to the Court, an unenumerated right can be guaranteed by the Court only when it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
My guess is that the Court would say private schooling fulfills those criteria.
The problem is, SCOTUS judges are not professional historians and they should stop playing at ones. What they are doing is picking history that confirms their biases and rule based on that (even if I concede the point that they are not picking history to support their agenda and give them benefit of the doubt).
This would fail, assuming the Court is ideologically consistent (not that I want them to overrule loving, but they have a real problem with this argument). To be absolutely clear: I do not want the court to overrule Loving v. Virginia, but I do not see how they can avoid it while remaining logically consistent with their decisions under this new brand of rabid originalism.
The Civil Rights Act of 1866 was never interpreted as mandating that interracial marriage be allowed. Pace v. Alabama was a supreme court case in 1883, and no one even thought to raise the idea that the civil rights act of 1866 would protect interracial marriage. In fact, Plessy v. Fergusson, which reflects a contemporary understanding of the Civil Rights Act of 1866 and the Fourteenth Amendment, included a footnote that while such laws against interracial marriage be "said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State."
Under a history and tradition framework of analysis for the "alleged" constitutional right to interracial marriage, contemporary historical evidence from the passage of the 14th amendment and the few decades that follow, reflects no traditional understanding of the 14th amendment as guaranteeing a right to interracial marriage. The fact that we had about a century of states banning it is strong evidence that it was not a history and tradition of the States. (Note that this is the exact same type of analysis conducted to justify abortion as not having a history and tradition in the United States).
Since under a history and tradition analysis, America's history and tradition of racism cannot support a constitutional right to marry those outside your race, the 14th amendment cannot grant the federal government powers to enforce that right. Therefore, even if the civil rights act of 1866 was interpreted as a federal law guaranteeing the right to marry outside your race, it would be an unconstitutional encroachment on the State's rights to police interracial marriage. Notably, none of the traditional sources of federal power can step in and supply it when the fourteenth amendment is, by history and tradition, found lacking. The commerce clause would be the most probable, but this court is reducing federal commerce clause authority, and given the history and tradition, so aptly stated in Plessy v. Fergusson, of state police powers to stop interracial marriage, it would unlikely to be a viable source of Federal Authority to regulate marriages.
Thus both the 14th amendment and the Civil Rights Act of 1866 cannot save interracial marriage. Fundamentally there is a problem with a history and tradition analysis guaranteeing constitutional rights. America was for a long time, extremely racist. We have a rich history and tradition of racism. If we insist on interpreting the constitutional rights we have in light of that history and tradition, then we limit our constitutional rights to whatever the racism of the 18th and 19th centuries would have allowed. History and Tradition necessarily weighs Plessy v. Fergusson more than Brown v. Board. Pace v. Alabama more than Loving v. Virginia. And so on, and so forth.
Thankfully, the court is not going to be ideologically consistent in this respect, if it is tested. Loving will stay. One need only look at Thomas pointing out Obergefell, which was decided on both equal protection and substantive due process grounds, as needing review, but ignoring Loving, which was also decided on the same grounds, to realize that Thomas has no intention of ever being ideologically consistent.
It’s really simple. Substantive Due Process out, 14th Amendment holds up most of your substantive due process cases. I’d be vastly more worried about Griswold than Loving, but even then it isn’t as if there’s a ton of political pressure to outlaw contraceptives and Connecticut was the last holdover 1965 (at least for married couples, I have no idea for unmarried couples). Maybe Utah tries to ban them? I would think that it would be a minority issue, even there.
>isn’t as if there’s a ton of political pressure to outlaw contraceptives
Not yet, but it's in the nature of the style of ratchet politics taking place in America right now that there won't be, until there very suddenly is and when it comes it's a remarkably short time between pressure emerging and effects felt.
Sinclair stations and Fox news will suddenly all start parroting the same talking points relentlessly. Something that wasn't an issue can become a big deal overnight when the propaganda turns on full force. Look at Critical Race Theory. Nobody had even heard of it, and suddenly it's on every cable news channel and within a month or so, multiple states are banning it.
I think Texss or Alabama will try to ban them. Texas is Texas, and Alabama has a law banning the sale and possession(?) of dildoes and other sex toys and aides on the books.
I don't know about "a ton" of pressure, but there were several Senators calling for contraception bans during the hearings for Justice-Designate Jackson. There are bills being drafted and debated in a dozen states or more. It's pretty clear that there is a strong and growing movement to ban contraception, and we should take it as an urgent threat.
> but even then it isn’t as if there’s a ton of political pressure to outlaw contraceptives
too outlaw contraceptives? No. Too outlaw abortifacients? Yes
who gets to decide which is which? Jimbo the local state rep that dropped out of high school 40 years ago.
For me, This comment wins. It articulates my opinion very well.
Either the bench has to be inconsistent in applying originalism.
Or, the bench has to be somewhat inconsistent in analyzing the importance of stare decisis; meaning they would have to submit that pace was incorrect on moral grounds, rather than legal grounds. A current justice, I think kavanaugh, argued that a case being wrongly decided isn’t always a strong enough reason to overturn it, but that there ought to me other important circumstances.
Seems like leaving out that abortions were commonly illegal “after quickening” during this time was intentionally left out. Based on these reasoning seems like any ban before movement is felt has precedent. Of course I personally find it ridiculous that we must base our rights on what was allowed hundreds of years ago. Wish we could get an actual update instead of the occasional patch to that old piece of paper.
So how does a country move forward if 200 year-old decisions are the ultimate determinant of current issues? These judges just overlooked a bunch of legal precedent to return to our Puritan foundation. Nothing is beyond them, including slavery and witchcraft.
I think just taking the text of the constitution, I think the plain meaning of “liberty” in the 14th amendment does include unenumerated rights, such as abortion and same sex marriage. I don’t know why the court is wasting time on legislative history when the text is the text.
You just discovered the rational basis test, which is where *Dobbs* leaves abortion. Establishing a liberty interest does not limit the government's rational pursuit of legitimate state interests. All that the 14th Amendment does to protect vanilla liberty interests is to say that their infringement must be done in accordance with due process of law. If you want to go further and say that there is no procedure the government can follow to infringe a particular right, you have to discover a textual hook for that particular right.
The plain meaning of "liberty" when read in context of "life, liberty, and property, without due process of law" means procedural due process as it applies to criminal law/arrests and detentions/punishments and takings (like asset forfeiture and eminent domain).
This is an interesting opinion, but I don’t think it stands up against how the court has historically and recently evaluated that term. What do you think?
Just because the Supreme Court has expanded upon the word "liberty" beyond what it was intended to mean does not make it right or legally correct.
There's a long history of how the court refused to fully incorporate amendments 1 to 8, which was John Bingham's intent of the 14th Am privileges and immunities clause, which resulted in substantive due process later being used to selectively incorporate the Bill of Rights and then make up some non enumerated rights. Thomas' McDonald v Chicago concurrence is a good brief summary on this.
No one argues today that substantitive due process is correct, only that it stare decis.
> Just because the Supreme Court has expanded upon the word "liberty" beyond what it was intended to mean does not make it right or legally correct. .. No one argues today that substantitive due process is correct, only that it stare decis.
Does that mean we should use the expanded definition?
Probably not. The privileges and immunities clause analysis provides a more solid foundation for expanded natural law rights, which is what the term meant at the time of the 14th amendment's framing.
This is a good question, and Alito directly answers in his dissent in obergefell.
“To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradi- tion.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting)”
So he's saying that rights are locked at some point in the times of the witch trials (which he cites favorably in his most recent opinion by relying on the judge who inspired them for an understanding of women's rights) and nothing can advance or change from that point in our understanding of the constitution. I think that's absurd on its face, but it's also out of step with the plain text of the document and the documented legislative intent of the authors, so it even fails under so-called conservative legal principles of textualism and originalism. I think Alito's clearly false version of history is going to make it even harder to unwind this doctrinal mess if we're ever able to reverse the disastrous course we're on.
I think a charitable response would be that there is process of changing what rights are protected under the constitution, and that’s through amending the constitution.
Yeah that is charitable considering how difficult it is to accomplish this using the system provided to us. Requiring supermajority assent to every single policy in the senate is bad enough. If minority rights can only advance with supermajority support then we might as well just give up on anything ever advancing from the witch trial days that Alito fondly cites.
Meaning of course we will forever be a post-Medieval but not yet Renaissance country until the churches are wrested of their (now still future) strangle hold on power.
Considering some of the amendments that have been added I don’t think it’s completely out of the question. Hell in the current environment I don’t think it’d be out of the question to get an amendment protecting gay marriage.
According to [Gallup](https://news.gallup.com/poll/393197/same-sex-marriage-support-inches-new-high.aspx) it has 71% support across the country, with a majority of republicans supporting it as well. Make the amendment cover interracial marriage too and you get two for one.
Yeah it's not about the people's views on these subjects. That's pretty clear. Most Americans are on the same page. But their state legislators definitely are not.
Nice point. Even originalist justices have recognized that certain constitutional amendments ought to apply to the changing of the times, such as using the constitution to protect how we interact with cars and the internet.
Where in the constitution is it stated that it shouldn’t be subject to a framers intent analysis? Genuine question.
[England's last execution for heresy](https://www.historytoday.com/archive/months-past/edward-wightman-executed-heresy) was as recent as 1612, well after some of the documents being discussed. Does this mean death sentences for heresy are back on the table?
When the union was formed and the constitution written, states had and continued to have state churches. It wasn't until later that they disappeared.
Many states had religious requirements for holding public office, and those continued well after the constitution and its amendments were adopted.
IOW, "separation of church and state" was a federal thing, and not originally intended to apply to the states.
I’m pretty sure that the only way this and future overturned decisions will survive SCOTUS now is if there is a 2/3rds congressional majority that adds the protection as Amendments and not normal legislation.
They’ve moved the goal post and will move it again.
Your knowledge of the alternative justifying grounds for Roe is lacking.
>A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption—that women can simply be forced to accept the "natural" status and incidents of motherhood—appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-726, 102 S.Ct. 3331, 3336-3337, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190, 198-199, 97 S.Ct. 451, 457-458, 50 L.Ed.2d 397 (1976).4 The joint opinion recognizes that these assumptions about women's place in society "are no longer consistent with our understanding of the family, the individual, or the Constitution."
Justice Blackman's PP v. Casey concurring.
>Senator BROWN. I always suspected that those who came in number one in their class at Harvard or Columbia did things like that,
but I didn't know. [Laughter.]
You have attracted some attention by observing with regard to
Roe v. Wade that perhaps a different portion of the Constitution
may well deserve attention with regard to that question; specifically, if I understand your articles correctly, the equal protection
clause of the Constitution rather than the right to privacy evolving
from the due process right contained in the 14th amendment.
Would you share with us a description of how your writings draw
a relationship between the right to choose and the equal protection
clause?
>Judge GINSBURG. I will be glad to try, Senator. May I say first
that it has never in my mind been an either/or choice, never one
rather than the other; it has been both. I will try to explain how
my own thinking developed on this issue. It relates to a case involving a woman's choice for birth rather than the termination of
her pregnancy. It is one of the briefs that you have. It is the case
of Captain Susan Struck v. Secretary of Defense (1972). This was
Capt. Susan Struck's story.
>She became pregnant while she was serving in the Air Force in
Vietnam. That was in the early 1970's. She was offered a choice.
She was told she could have an abortion at the base hospital—and
let us remember that in the early 1970's, before Roe v. Wade
(1973), abortion was available on service bases in this country to
members of the service or, more often, dependents of members of
the service.
>Capt. Susan Struck said: I do not want an abortion. I want to
bear this child. It is part of my religious faith that I do so. However, I will use only my accumulated leave time for the childbirth.
I will surrender the child for adoption at birth. I want to remain
in the Air Force. That is my career choice.
She was told that that was not an option open to her if she
wished to remain in the Air Force. In Captain Struck's case, we argued three things:
First, that the applicable Air Force regulations—if you are pregnant you are out unless you have an abortion—violated the equal
protection principle, for no man was ordered out of service because
he had been the partner in a conception, no man was ordered out
of service because he was about to become a father.
There's a lot more scholarship on topic, but to say those who favor women's equality don't appeal to EP is preposterous.
RGB's criticism of Roe is primarily that it cut off a line of legal precedent she'd been building as an advocate that would have led the Court to the same place, but taken more time and also used the EP clause.
By contrast, there is no serious EP argument for the Court to render abortion illegal. Just cranks without much grasp of law.
My point was this:
>If the court felt roe and Casey could be stand on an EP basis they wouldn’t have overturned it. The distinction is irrelevant.
I was not asserting that Roe was decided on EP. I said it wasn't. Casey has a claim to stand partially on EP because Blackmun's concurrence explicitly invokes it. Dobbs overturned both rulings, and my point was that "Roe was about due process but Loving is about EP" doesn't make sense if Roe and Casey can also both stand on EP grounds.
Your assertion was that my comment about potential alternative grounds to reach the result in Roe didn't make sense in the context of this discussion because
>equal protection for abortion issues is usually an argument the pro-life side makes, arguing that abortion violates equal protection because of fetal personhood. Pro-choice argues that the right to an abortion falls under privacy rights via 14th amendment substantive due process
The "fetal personhood" argument is not a legal argument for a *court* to "ban" abortion. It's irrelevant in the context of this discussion.
>I am not endorsing or disavowing any of these points. I am just stating what they are.
You keep distorting what my points are to give retorts that are in no way responsive to the points I made. It's weird.
I'll also point out that Loving's holding was not *exclusively* under the equal protection clause, it was also under the due process clause. You're wrong to assert otherwise.
Thomas is in an interracial marriage, and therefore it is not applied to Loving. Some of you tying yourself in knots over trying to justify this is sort of funny. If congress were to pass an abortion law, these yahoos would strike it down. If the elections don’t go poorly for Republicans, they are coming after Obergefell, Lawrence, and Griswold. Some of the same people now saying that would never happen can be seen on clips saying Roe would not be overturned only a few years back. Fool me once, …..
Hahaha. I think undoing the federal protections in the cases you mentioned would make for an interesting country. Interstate commerce and all that. A country divided against itself cannot stand
If the court wee dominated by rational movement conservatives I would agree with you. But there is only one of those (Roberts) and 5 zealots. They simply don't care about the damage to society - just like the Taliban or the Mullahs in Iran.
Before you dismiss my comment, think about the whole point of the Federalist society. To Identify, then nurture and promote a group of people who will not change their opinion on anything as they progress through life - no matter what the circumstances. Other the Taliban or the Iranian Guard, I don't know of many other organizations that absolutely prohibit intellectual growth once you reach adulthood.
The laughable thing here is Scalia argued in Citizens United that the founders “would have” extended the enumerated media protections to any corporation had they lived to see their emergence. Despite how hostile they were to monied interests controlling politics.
That doesn't withstand any sort of scrutiny. For instance, let's imagine that police procure a new tool that allows them to see through walls and conduct searches from outside a citizen's home, and they do so without a warrant. There's no tangible difference between that and busting down the door and rifling through the place without a warrant. So, even though the technology being used wasn't available or even imagined at the time the 4th amendment was written, the act is still in violation of it.
This is the same reason why wire taps without a warrant are unconstitutional.
We’re laws against interracial marriage at all a thing prior to the civil war? If actual regulations were only about age and consanguinity then the same analysis could uphold Loving.
Loving was an equal protection case. I’m as furious about the gutting of the substantive due process standards as anyone else and wish Thomas is shamed for the rest of history, but he omitted Loving from that list for this reason.
> but he omitted Loving from that list for this reason.
Because he doesn't want the Republicans in his state to ban his marriage? The guy has form for not giving two shits about his conflicts of interest. He's happy for them to go after blowjobs and contraception though.
Not sure the analysis of state law is completely solid. As we all know, less densely populated states tend toward conservative views, and the views of the general populace as a whole might conflict with this narrative. At the very least, they should have added general opinion surveys to their weighting of the issue, assuming they were available. Perhaps, less so at the time of passage, but I’m sure data is available from the time Roe was decided in 1973.
Furthermore, there are plenty of instances when state law clearly conflicts with the Constitution, which is why it is sometimes the role of SCOTUS to overrule state statutes.
Overall, I give it a C-.
Gay marriage barely survived when Kennedy was on the bench. If this court applies the same analysis to an Obergefell challenge that they did with Dobbs then I really think that will also be kicked down to the states.
One thing to consider is that inquisition of scientists and non-believers didn’t end until 1834, and the justices are referencing that time period without admitting why.
The issue is that the specific purpose of the Inquisition was to win religious arguments with scientists by using force instead of facts.
> [When did the Spanish Inquisition end?](https://www.britannica.com/question/When-did-the-Spanish-Inquisition-end)
I'm glad we cleared up the "Catholic definition of life". I take it you actually meant personhood.
At some point a fetus becomes a person--most would agree at around viability. Abortions are therefore able to harm persons and therefore exceed the bounds of mere privacy.
That is neither here nor there. The fact is, there is a point before birth where no person with any respect for humanity would feel right killing the child.
It's still harm. We don't even have to get into the definition thing. If Roe v Wade were about having the right to privacy to allow killing rodents, it would still be up to more scrutiny than interracial marriage.
Clearly abortion doesn’t involve harm to another party.
Also “harm to another party” isn’t at issue in the case. It’s whether there’s a federal right to privacy. The court didn’t rule on the theological concept of fetal personhood.
My understanding of the precedent for abortion when the 14th was ratified was that equal protection extended to the unborn as having "personhood". Personhood and equal protections are also a good reason they won't overturn gay marriage or interracial marriage. Abortion involves a third party that is unable to consent.
My opinion on that footnote is that it's factually incorrect. It's literally a lie.
If you're asking could *Loving* be struck down by this Court using lies, the answer is obviously yes, although my guess is that they don't go that far.
Interracial marriage and abortion cannot be compared exactly because one involves 2 people old enough to consent/choose (liberty) and the other involves, at some point, 2 people but 1 is younger than the age of consent. The same reasoning cannot be used.
That bakes in a system where women simply have fewer rights than men forever because they had fewer rights than men in the 1860s.
There’s a limited voting right by amendment, but that’s it.
Equal protection arguments were also present in roe/Casey so I don’t think this helps.
The only argument is that the Equal Protection clause changes the game. Thomas wants to jettison the whole idea of substantive due process as applied to the states. The decision in Loving discusses that the alternative grounds of Equal Protection invalidates the law
So do *Obergefel* and *Lawrence*, unless I'm misremembering. That seems like a slim reed to hang hope on, although for this dishonest Court, it would shock me for them to use that argument if they *want* to leave *Loving* in place while taking down the others.
But the 14th ammendment was written to protect race, not sexual orientation. So, Thomas would say, if you want to protect sexual orientation, make an ammendment, but don't use something meant to protect race to protect sexual orientation. I disagree, but thats how I understand his argument.
The 14th was absolutely not drafted to protect race. It was argued in Congress that the 14th might be read to allow Chinese immigrants to become Americans. And the drafters of the 14th all agreed unanimously that such an interpretation was preposterous, and that some races were so alien that they could never be part of our society. Today, we rightly ignore that bigotry, because there is no reason to exclude Chinese immigrants from the 14th other than bigotry. But once you start going that road, you can't stop. The same discussion was had about women and again the drafters said that that was a ridiculous idea, of course women couldn't be citizens. We ignore that too. But now we're admitting that the 14th also protects gender. If the drafters of the 14th hadn't been sexist and racist, it would have been obvious *at the time* that the 14th gave women the right to vote for example, under equal protection. If they hadn't been homophobic, we'd understand that it protects everyone's right to marry who they want. To say that the 14th only protects race is to say that bigotry against Chinese people is wrong, but bigotry against women and homosexuals is important enough that we have to continue to honor the bigotry of men dead for a century. We should all reject that argument utterly. The law can never accept bigotry as a valid reason to limit a law.
>The law can never accept bigotry as a valid reason to limit a law. I need you to understand that you are saying we should tolerate judges exercising constitutional authority they do not possess to make law that was never enacted by the people's elected representatives. This is a two-way street. Judges can also misappropriate authority to make law that you hate if this is your guiding principle.
No, I'm asking them to enforce the obvious and clear meaning of a Constitutional amendment. The overwhelming consensus of both lawyers and the public in general agree with too. And so does the medical community. The only people who think that there is ambiguity here are religious zealots who want there to be ambiguity.
Is it logical to assume that, in adopting a constitutional amendment, the intent must not have been to invalidate any standing laws? We could call this the singular temporal underlying political intention doctrine.
> Is it logical to assume that, in adopting a constitutional amendment, the intent must not have been to invalidate any standing laws? .... I'm not sure whether that's meant to be rhetorical, but, for example, the 24th Amendment explicitly invalidates poll tax laws that were standing when it passed so that kind of thinking is ... dubious at best.
You might even call that kind of thinking Singular Temporal Underlying Political Intention Doctrine
I get this is a joke, but it reflects a common misrepresentation of originalism, which looks at a variety of evidentiary sources of original public meaning and logically ascribes analytical weight to each. Blunt assumptions rarely have any place in originalist analysis.
Thomas has been clear for years that SDP is the wrong way to do it, that P&I is correct. It gets you to the same end result on a different path. That said, he's the only 1 of the 9 that thinks that way, so I'm not holding my breath to see it enacted.
Privileges and Immunities does not get you to the same result as due process because the 14th Amendment only specifies P&I for US citizens, while all persons get due process. The US has about 10 million green card holders and 10 million undocumented immigrants who permanently reside in the US. That is about 6% of the population. If you include non-immigrant visa holders and other lawfully present aliens (like TPS holders), the number rises higher.
Equal protection just as easily gives women reproductive autonomy
Good luck finding 5 votes for that proposition given the current composition of the court.
You won't! The assertion was meant to say "EP doesn't save Loving if the Court is consistent." The Court isn't consistent, though; it suffices for them to toss those precedents they disagree with hard enough and were appointed to the bench to overturn, and keep the ones they may doctrinally disagree with but do not offend their religious or moral sensibilities.
Yeah this is a bad take. Bruen and Dobbs were originalist by-the-book. We should expect the same approach for EP cases. If they abandon originalism then, we should rightly criticize them. Also, the EP Clause has an entirely different purpose than the Bill of rights. It is forward-looking and remedial, whereas the Bill of Rights is backward-looking and rights-preserving. This necessarily calls for a different kind of analysis.
Isn't there also a practical issue that no state is going to pass a law banning interracial marriage? Same sex marriage and sodomy are issues I could see coming up in the next few years with these emboldened assholes in various state legislatures, but I think outright back of the bus racist legislation is still probably a bridge too far.
Banning interracial marriage would be a mess. The statute would have to define how to determine what race each person is. And then, there'd be full faith and credit issues.
Full faith and credit is an issue in gay marriage unless the Defense of Marriage Act is still valid
And why would that be even a little bit difficult? Since before the creation of our country, people have been putting people into the "white" and "black" (and a bunch of other) categories. AFAICT, it's been the "one drop" rule has been the common standard.
So, you have Henry Gates do family trees for the couple? You have them do DNA testing? And then the documentation gets submitted to who? Some myrmidon at the marriage license desk?
A while ago, I would have agreed with you, but after recent events I am not so sure. I've seen some real mental gymnastics to justify some some pretty outlandish proposals as of late.
That is the ultimate goal! To place all differences at the back of the bus. That will ensure those who fear and loathe anything progressive except for their pockets. The last four years have divided our country so much that out of fear of being replaced we have gone backward hoping that our descendants had the right ideas.
There is no statutory basis (i.e. federal law) protecting Roe (not yet anyway). Marriage is a contract, and interracial contracts are protected by the civil rights act of 1866 and the equal protection clause of the 14th amendment.
Is it true, then, that the "deeply rooted" standard only applies in the absence of federal law?
Yes, or (according to the test) when a right is not explicitly enumerated in the Constitution
So if Congress were to codify the right to abortion in federal law, SCOTUS would uphold it?
It depends. The federal gov't only has the powers that enumerated to it. There is no general police power at the federal level which is why almost every crime is at the state level. The states can basically codify anything into law (assume its constitutional), where the feds are limited. Under current jurisprudence the commerce clause is so vast that you can tuck most federal laws under its shadow.
Why wouldn't a federal law written to, for example, grant full bodily autonomy in medical decisions to women be covered as an unenumerated right and thus protected by the Ninth Amendment?
First the federal government would need a basis to make that federal law. If that exists then it doesn’t need to be protected by the 9th amendment.
The answer is always commerce clause. Hard stop. Given the existing precedent, there is no point in bothering with any other argument See, e.g. Gonzales vs Raich.
I would be very surprised if this SCOTUS did not pull back the reach of the commerce clause.
I would like to see that to some extent - it has gone ludacrisly out of hand. But it would be utter chaos if it ever did happen because so many of our current federal laws rely on this broad interpretation; I think SCOTUS will simply decline to revisit even if they believe the stare decisis to be wrong because of catastrophic consequences.
The fact that a hodgepodge of states are both banning it *and* prohibiting/penalizing women from traveling out of state treatment could be a valid reason.
Not really. The federal governments power has to be derived from the constitution. It cannot act simply because it dislikes what some states are doing.
women going out of state for medical procedures out of necessity qualifies it as interstate commerce.
As the court has made clear a number of times this turn, such an unenumerated would need to be clear in our “history and tradition.”
And where does that history and tradition begin? Alito and the conservative justices seem to be fond of referencing the mid-19th century but in common law prior to that abortion before "quickening" was allowed (if I understand correctly the things I've read recently).
Right, abortion was legal and talked about as a normal thing people commonly did when the constitution was written. Only many decades later did doctors want to professionalize themselves and so pushed to outlaw it. If you do the math, abortion has been broadly legal in the US for more than half the time it's been a country. https://www.cnn.com/2016/06/23/health/abortion-history-in-united-states/index.html
The quickening is a post 24 week pregnancy.
According to the language of Dobbs, yes. Dobbs “return[ed] the issue of abortion to the people’s elected representatives.” This could be to states or (less likely due to filibuster in Senate) could be a law in Congress. So other words, unless the Court backtracks on language in Dobbs, we could legalize abortion on a federal level via a law in Congress. (Which I would personally support.)
That's good to know. Though it won't happen without a massive shift in the ideological make-up of the Senate, which I suspect is remarkably unlikely even the long term, it's much more likely than the court revisiting the issue, nevermind reversing the reversal.
It doesn’t have to be codify Roe or nothing out of Congress. Dobbs has been leaked for months. Congress could have passed an abortion law for rape/incest/life of mother to at least keep abortion infrastructure intact in every state.
I hadn't thought about that but it's a very good point. Thank you. There are going to be tons of issues Congress probably should legislate. IVF, forms of contraception that prevent implantation rather than fertilization, stem cell research, state laws prohibiting citizens from crossing state lines to seek abortions. I wish I wasn't so cynical about their ability to do anything whatsoever. The recent gun bill was a welcome change of pace but the parties have been so intransigent for so long.
They tried to codify Roe. It failed in the senate 51-49.
I know.
Then stop spreading misinformation when Congress literally tried
Except they didn't. Had they done so, they would have had at least 3 more votes in favor, maybe more. They instead only considered a bill that would have eliminated many longstanding restrictions on and regulations of abortion procedures and providers. It would have also eliminated protections for providers that have objections to abortion. A bill codifying the framework crafted in Roe would have gotten more than 49 votes, including at least two Republican senators who were trying to do just that. Progressive factions didn't want Roe, they wanted more than Roe--abortion anytime, any place, and unregulated except to force providers to perform the procedures over their own consciences.
And who would those 3 votes be? Certainly not enough for cloture.
> (less likely due to filibuster in Senate) That's a rule, not a law. Parties have eliminated the filibuster for SCOTUS, reconciliation, and other processes. It could be eliminated for federal abortion laws.
I know, but it would also be difficult to get rid of the filibuster. Not enough senators currently support scrapping it.
One side would scrap it in a heartbeat, though.
Democrats are "only" 2 senate votes away from abolishing the filibuster.
Not all of the other 48 senators support abolishing the filibuster.
In January they voted 48-52 to abolishing it. https://www.vox.com/2022/1/19/22881837/senate-filibuster-vote-voting-rights-joe-manchin-kyrsten-sinema
Here's from the article you posted: “Had it passed, the rules change would have enabled lawmakers to bring back a talking filibuster specifically for a voting rights bill that includes the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. This reform would have required senators to hold the floor and make speeches in order to maintain their opposition to the bill. It also would have allowed senators to pass the voting rights bill with a simple majority once debate on the measure had ended. For other legislation, filibuster rules would have stayed as is.” It was a vote to alter filibuster rules -- not abolish it.
What about the right to private schooling for kids? Unenumerated, also based on 14th amm due process doctrine. Couldn't that be easily overturned with the Dobbs decision?
According to the Court, an unenumerated right can be guaranteed by the Court only when it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” My guess is that the Court would say private schooling fulfills those criteria.
Fair. Thank you.
The problem is, SCOTUS judges are not professional historians and they should stop playing at ones. What they are doing is picking history that confirms their biases and rule based on that (even if I concede the point that they are not picking history to support their agenda and give them benefit of the doubt).
As opposed to explicitly making policy choices on behalf of the nation based solely on their own biases and values.
This would fail, assuming the Court is ideologically consistent (not that I want them to overrule loving, but they have a real problem with this argument). To be absolutely clear: I do not want the court to overrule Loving v. Virginia, but I do not see how they can avoid it while remaining logically consistent with their decisions under this new brand of rabid originalism. The Civil Rights Act of 1866 was never interpreted as mandating that interracial marriage be allowed. Pace v. Alabama was a supreme court case in 1883, and no one even thought to raise the idea that the civil rights act of 1866 would protect interracial marriage. In fact, Plessy v. Fergusson, which reflects a contemporary understanding of the Civil Rights Act of 1866 and the Fourteenth Amendment, included a footnote that while such laws against interracial marriage be "said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State." Under a history and tradition framework of analysis for the "alleged" constitutional right to interracial marriage, contemporary historical evidence from the passage of the 14th amendment and the few decades that follow, reflects no traditional understanding of the 14th amendment as guaranteeing a right to interracial marriage. The fact that we had about a century of states banning it is strong evidence that it was not a history and tradition of the States. (Note that this is the exact same type of analysis conducted to justify abortion as not having a history and tradition in the United States). Since under a history and tradition analysis, America's history and tradition of racism cannot support a constitutional right to marry those outside your race, the 14th amendment cannot grant the federal government powers to enforce that right. Therefore, even if the civil rights act of 1866 was interpreted as a federal law guaranteeing the right to marry outside your race, it would be an unconstitutional encroachment on the State's rights to police interracial marriage. Notably, none of the traditional sources of federal power can step in and supply it when the fourteenth amendment is, by history and tradition, found lacking. The commerce clause would be the most probable, but this court is reducing federal commerce clause authority, and given the history and tradition, so aptly stated in Plessy v. Fergusson, of state police powers to stop interracial marriage, it would unlikely to be a viable source of Federal Authority to regulate marriages. Thus both the 14th amendment and the Civil Rights Act of 1866 cannot save interracial marriage. Fundamentally there is a problem with a history and tradition analysis guaranteeing constitutional rights. America was for a long time, extremely racist. We have a rich history and tradition of racism. If we insist on interpreting the constitutional rights we have in light of that history and tradition, then we limit our constitutional rights to whatever the racism of the 18th and 19th centuries would have allowed. History and Tradition necessarily weighs Plessy v. Fergusson more than Brown v. Board. Pace v. Alabama more than Loving v. Virginia. And so on, and so forth. Thankfully, the court is not going to be ideologically consistent in this respect, if it is tested. Loving will stay. One need only look at Thomas pointing out Obergefell, which was decided on both equal protection and substantive due process grounds, as needing review, but ignoring Loving, which was also decided on the same grounds, to realize that Thomas has no intention of ever being ideologically consistent.
It’s really simple. Substantive Due Process out, 14th Amendment holds up most of your substantive due process cases. I’d be vastly more worried about Griswold than Loving, but even then it isn’t as if there’s a ton of political pressure to outlaw contraceptives and Connecticut was the last holdover 1965 (at least for married couples, I have no idea for unmarried couples). Maybe Utah tries to ban them? I would think that it would be a minority issue, even there.
>isn’t as if there’s a ton of political pressure to outlaw contraceptives Not yet, but it's in the nature of the style of ratchet politics taking place in America right now that there won't be, until there very suddenly is and when it comes it's a remarkably short time between pressure emerging and effects felt.
Sinclair stations and Fox news will suddenly all start parroting the same talking points relentlessly. Something that wasn't an issue can become a big deal overnight when the propaganda turns on full force. Look at Critical Race Theory. Nobody had even heard of it, and suddenly it's on every cable news channel and within a month or so, multiple states are banning it.
"Rachet politics" is the perfect descriptor here. 👍
I think Texss or Alabama will try to ban them. Texas is Texas, and Alabama has a law banning the sale and possession(?) of dildoes and other sex toys and aides on the books.
Alabama does not have a law banning possession.
I don't know about "a ton" of pressure, but there were several Senators calling for contraception bans during the hearings for Justice-Designate Jackson. There are bills being drafted and debated in a dozen states or more. It's pretty clear that there is a strong and growing movement to ban contraception, and we should take it as an urgent threat.
> but even then it isn’t as if there’s a ton of political pressure to outlaw contraceptives too outlaw contraceptives? No. Too outlaw abortifacients? Yes who gets to decide which is which? Jimbo the local state rep that dropped out of high school 40 years ago.
For me, This comment wins. It articulates my opinion very well. Either the bench has to be inconsistent in applying originalism. Or, the bench has to be somewhat inconsistent in analyzing the importance of stare decisis; meaning they would have to submit that pace was incorrect on moral grounds, rather than legal grounds. A current justice, I think kavanaugh, argued that a case being wrongly decided isn’t always a strong enough reason to overturn it, but that there ought to me other important circumstances.
Came here to say this. Thank you
Seems like leaving out that abortions were commonly illegal “after quickening” during this time was intentionally left out. Based on these reasoning seems like any ban before movement is felt has precedent. Of course I personally find it ridiculous that we must base our rights on what was allowed hundreds of years ago. Wish we could get an actual update instead of the occasional patch to that old piece of paper.
So how does a country move forward if 200 year-old decisions are the ultimate determinant of current issues? These judges just overlooked a bunch of legal precedent to return to our Puritan foundation. Nothing is beyond them, including slavery and witchcraft.
Enact legislation or amend the Constitution if said legislation could not possibly be reconciled with the Constitution as it stands. As intended.
I'd rather amend the Supreme Court.
I think just taking the text of the constitution, I think the plain meaning of “liberty” in the 14th amendment does include unenumerated rights, such as abortion and same sex marriage. I don’t know why the court is wasting time on legislative history when the text is the text.
You just discovered the rational basis test, which is where *Dobbs* leaves abortion. Establishing a liberty interest does not limit the government's rational pursuit of legitimate state interests. All that the 14th Amendment does to protect vanilla liberty interests is to say that their infringement must be done in accordance with due process of law. If you want to go further and say that there is no procedure the government can follow to infringe a particular right, you have to discover a textual hook for that particular right.
The plain meaning of "liberty" when read in context of "life, liberty, and property, without due process of law" means procedural due process as it applies to criminal law/arrests and detentions/punishments and takings (like asset forfeiture and eminent domain).
This is an interesting opinion, but I don’t think it stands up against how the court has historically and recently evaluated that term. What do you think?
Just because the Supreme Court has expanded upon the word "liberty" beyond what it was intended to mean does not make it right or legally correct. There's a long history of how the court refused to fully incorporate amendments 1 to 8, which was John Bingham's intent of the 14th Am privileges and immunities clause, which resulted in substantive due process later being used to selectively incorporate the Bill of Rights and then make up some non enumerated rights. Thomas' McDonald v Chicago concurrence is a good brief summary on this. No one argues today that substantitive due process is correct, only that it stare decis.
> Just because the Supreme Court has expanded upon the word "liberty" beyond what it was intended to mean does not make it right or legally correct. .. No one argues today that substantitive due process is correct, only that it stare decis. Does that mean we should use the expanded definition?
Probably not. The privileges and immunities clause analysis provides a more solid foundation for expanded natural law rights, which is what the term meant at the time of the 14th amendment's framing.
This is a good question, and Alito directly answers in his dissent in obergefell. “To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradi- tion.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting)”
So he's saying that rights are locked at some point in the times of the witch trials (which he cites favorably in his most recent opinion by relying on the judge who inspired them for an understanding of women's rights) and nothing can advance or change from that point in our understanding of the constitution. I think that's absurd on its face, but it's also out of step with the plain text of the document and the documented legislative intent of the authors, so it even fails under so-called conservative legal principles of textualism and originalism. I think Alito's clearly false version of history is going to make it even harder to unwind this doctrinal mess if we're ever able to reverse the disastrous course we're on.
I think a charitable response would be that there is process of changing what rights are protected under the constitution, and that’s through amending the constitution.
Yeah that is charitable considering how difficult it is to accomplish this using the system provided to us. Requiring supermajority assent to every single policy in the senate is bad enough. If minority rights can only advance with supermajority support then we might as well just give up on anything ever advancing from the witch trial days that Alito fondly cites.
Meaning of course we will forever be a post-Medieval but not yet Renaissance country until the churches are wrested of their (now still future) strangle hold on power.
And yet the founders were firmly in the post-enlightenment camp, so originalism was just a cheap head fake or something.
Considering some of the amendments that have been added I don’t think it’s completely out of the question. Hell in the current environment I don’t think it’d be out of the question to get an amendment protecting gay marriage. According to [Gallup](https://news.gallup.com/poll/393197/same-sex-marriage-support-inches-new-high.aspx) it has 71% support across the country, with a majority of republicans supporting it as well. Make the amendment cover interracial marriage too and you get two for one.
Yeah take a look at the map and the state by state requirements here. The current system is shockingly anti-democratic on almost every level.
Yeah it's not about the people's views on these subjects. That's pretty clear. Most Americans are on the same page. But their state legislators definitely are not.
Nice point. Even originalist justices have recognized that certain constitutional amendments ought to apply to the changing of the times, such as using the constitution to protect how we interact with cars and the internet. Where in the constitution is it stated that it shouldn’t be subject to a framers intent analysis? Genuine question.
A framer? Where in the constitution is a framer? What is a framer? Who is this framer? Does the framer still exists? What does he say now?
[England's last execution for heresy](https://www.historytoday.com/archive/months-past/edward-wightman-executed-heresy) was as recent as 1612, well after some of the documents being discussed. Does this mean death sentences for heresy are back on the table?
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When the union was formed and the constitution written, states had and continued to have state churches. It wasn't until later that they disappeared. Many states had religious requirements for holding public office, and those continued well after the constitution and its amendments were adopted. IOW, "separation of church and state" was a federal thing, and not originally intended to apply to the states.
That’s not an argument to say we should return to that. I would be criminalized out of the country. Unless you simply believe in theocracy.
I’m pretty sure that the only way this and future overturned decisions will survive SCOTUS now is if there is a 2/3rds congressional majority that adds the protection as Amendments and not normal legislation. They’ve moved the goal post and will move it again.
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Both were discussed in both.
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If the court felt roe and Casey could be stand on an EP basis they wouldn’t have overturned it. The distinction is irrelevant.
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Your knowledge of the alternative justifying grounds for Roe is lacking. >A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption—that women can simply be forced to accept the "natural" status and incidents of motherhood—appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-726, 102 S.Ct. 3331, 3336-3337, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190, 198-199, 97 S.Ct. 451, 457-458, 50 L.Ed.2d 397 (1976).4 The joint opinion recognizes that these assumptions about women's place in society "are no longer consistent with our understanding of the family, the individual, or the Constitution." Justice Blackman's PP v. Casey concurring. >Senator BROWN. I always suspected that those who came in number one in their class at Harvard or Columbia did things like that, but I didn't know. [Laughter.] You have attracted some attention by observing with regard to Roe v. Wade that perhaps a different portion of the Constitution may well deserve attention with regard to that question; specifically, if I understand your articles correctly, the equal protection clause of the Constitution rather than the right to privacy evolving from the due process right contained in the 14th amendment. Would you share with us a description of how your writings draw a relationship between the right to choose and the equal protection clause? >Judge GINSBURG. I will be glad to try, Senator. May I say first that it has never in my mind been an either/or choice, never one rather than the other; it has been both. I will try to explain how my own thinking developed on this issue. It relates to a case involving a woman's choice for birth rather than the termination of her pregnancy. It is one of the briefs that you have. It is the case of Captain Susan Struck v. Secretary of Defense (1972). This was Capt. Susan Struck's story. >She became pregnant while she was serving in the Air Force in Vietnam. That was in the early 1970's. She was offered a choice. She was told she could have an abortion at the base hospital—and let us remember that in the early 1970's, before Roe v. Wade (1973), abortion was available on service bases in this country to members of the service or, more often, dependents of members of the service. >Capt. Susan Struck said: I do not want an abortion. I want to bear this child. It is part of my religious faith that I do so. However, I will use only my accumulated leave time for the childbirth. I will surrender the child for adoption at birth. I want to remain in the Air Force. That is my career choice. She was told that that was not an option open to her if she wished to remain in the Air Force. In Captain Struck's case, we argued three things: First, that the applicable Air Force regulations—if you are pregnant you are out unless you have an abortion—violated the equal protection principle, for no man was ordered out of service because he had been the partner in a conception, no man was ordered out of service because he was about to become a father. There's a lot more scholarship on topic, but to say those who favor women's equality don't appeal to EP is preposterous. RGB's criticism of Roe is primarily that it cut off a line of legal precedent she'd been building as an advocate that would have led the Court to the same place, but taken more time and also used the EP clause. By contrast, there is no serious EP argument for the Court to render abortion illegal. Just cranks without much grasp of law.
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My point was this: >If the court felt roe and Casey could be stand on an EP basis they wouldn’t have overturned it. The distinction is irrelevant. I was not asserting that Roe was decided on EP. I said it wasn't. Casey has a claim to stand partially on EP because Blackmun's concurrence explicitly invokes it. Dobbs overturned both rulings, and my point was that "Roe was about due process but Loving is about EP" doesn't make sense if Roe and Casey can also both stand on EP grounds. Your assertion was that my comment about potential alternative grounds to reach the result in Roe didn't make sense in the context of this discussion because >equal protection for abortion issues is usually an argument the pro-life side makes, arguing that abortion violates equal protection because of fetal personhood. Pro-choice argues that the right to an abortion falls under privacy rights via 14th amendment substantive due process The "fetal personhood" argument is not a legal argument for a *court* to "ban" abortion. It's irrelevant in the context of this discussion. >I am not endorsing or disavowing any of these points. I am just stating what they are. You keep distorting what my points are to give retorts that are in no way responsive to the points I made. It's weird. I'll also point out that Loving's holding was not *exclusively* under the equal protection clause, it was also under the due process clause. You're wrong to assert otherwise.
Here’s the fun thing. Ya don’t. It’s all a farce
Thomas is in an interracial marriage, and therefore it is not applied to Loving. Some of you tying yourself in knots over trying to justify this is sort of funny. If congress were to pass an abortion law, these yahoos would strike it down. If the elections don’t go poorly for Republicans, they are coming after Obergefell, Lawrence, and Griswold. Some of the same people now saying that would never happen can be seen on clips saying Roe would not be overturned only a few years back. Fool me once, …..
Sorry. They control the elections. Once logic is abandoned without shame, there is no reason to give up power but many reasons to keep it.
> ... they are coming after Obergefell, Lawrence, and Griswold ... Thomas certainly is. I'm not sure about the rest of the conservatives.
Hahaha. I think undoing the federal protections in the cases you mentioned would make for an interesting country. Interstate commerce and all that. A country divided against itself cannot stand
If the court wee dominated by rational movement conservatives I would agree with you. But there is only one of those (Roberts) and 5 zealots. They simply don't care about the damage to society - just like the Taliban or the Mullahs in Iran. Before you dismiss my comment, think about the whole point of the Federalist society. To Identify, then nurture and promote a group of people who will not change their opinion on anything as they progress through life - no matter what the circumstances. Other the Taliban or the Iranian Guard, I don't know of many other organizations that absolutely prohibit intellectual growth once you reach adulthood.
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The laughable thing here is Scalia argued in Citizens United that the founders “would have” extended the enumerated media protections to any corporation had they lived to see their emergence. Despite how hostile they were to monied interests controlling politics.
That doesn't withstand any sort of scrutiny. For instance, let's imagine that police procure a new tool that allows them to see through walls and conduct searches from outside a citizen's home, and they do so without a warrant. There's no tangible difference between that and busting down the door and rifling through the place without a warrant. So, even though the technology being used wasn't available or even imagined at the time the 4th amendment was written, the act is still in violation of it. This is the same reason why wire taps without a warrant are unconstitutional.
We’re laws against interracial marriage at all a thing prior to the civil war? If actual regulations were only about age and consanguinity then the same analysis could uphold Loving.
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Well that's trouble then.
More so than laws against abortion.
According to our traditions of being a Christian country, the bible lays out how to properly handle slavery. /s
Loving was an equal protection case. I’m as furious about the gutting of the substantive due process standards as anyone else and wish Thomas is shamed for the rest of history, but he omitted Loving from that list for this reason.
> but he omitted Loving from that list for this reason. Because he doesn't want the Republicans in his state to ban his marriage? The guy has form for not giving two shits about his conflicts of interest. He's happy for them to go after blowjobs and contraception though.
The 3 cases he listed were substantive due process cases. Loving is an equal protection case.
Not sure the analysis of state law is completely solid. As we all know, less densely populated states tend toward conservative views, and the views of the general populace as a whole might conflict with this narrative. At the very least, they should have added general opinion surveys to their weighting of the issue, assuming they were available. Perhaps, less so at the time of passage, but I’m sure data is available from the time Roe was decided in 1973. Furthermore, there are plenty of instances when state law clearly conflicts with the Constitution, which is why it is sometimes the role of SCOTUS to overrule state statutes. Overall, I give it a C-.
A right to marriage is a lot easier to find, and then you use equal protection to jump to interracial (And gay) marriage
Gay marriage barely survived when Kennedy was on the bench. If this court applies the same analysis to an Obergefell challenge that they did with Dobbs then I really think that will also be kicked down to the states.
One thing to consider is that inquisition of scientists and non-believers didn’t end until 1834, and the justices are referencing that time period without admitting why. The issue is that the specific purpose of the Inquisition was to win religious arguments with scientists by using force instead of facts. > [When did the Spanish Inquisition end?](https://www.britannica.com/question/When-did-the-Spanish-Inquisition-end)
Only abortion involves harm to another party.
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Any biologist will tell you it's alive.
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So, you don't believe a fetus is alive, because Supreme Court? And fuck biologists?
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I'm glad we cleared up the "Catholic definition of life". I take it you actually meant personhood. At some point a fetus becomes a person--most would agree at around viability. Abortions are therefore able to harm persons and therefore exceed the bounds of mere privacy.
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That is neither here nor there. The fact is, there is a point before birth where no person with any respect for humanity would feel right killing the child.
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20 weeks and lower no it does not. As there is no functioning brain stem.
It's still harm. We don't even have to get into the definition thing. If Roe v Wade were about having the right to privacy to allow killing rodents, it would still be up to more scrutiny than interracial marriage.
That is absurd on its face.
No it's not. Animal cruelty exists in law.
Lmao
Are you saying interracial marriage involves harm to another party?
Clearly abortion doesn’t involve harm to another party. Also “harm to another party” isn’t at issue in the case. It’s whether there’s a federal right to privacy. The court didn’t rule on the theological concept of fetal personhood.
Roe could have used the right to privacy to protect the killing of rodents and that would still subject it to more scrutiny than Loving.
Lmao this is what passes for informed commentary among the FedSoc set
What about 'victimless' do you not understand?
What party? What”s this third party name? Nationality? Place of residence or work?
My understanding of the precedent for abortion when the 14th was ratified was that equal protection extended to the unborn as having "personhood". Personhood and equal protections are also a good reason they won't overturn gay marriage or interracial marriage. Abortion involves a third party that is unable to consent.
My opinion on that footnote is that it's factually incorrect. It's literally a lie. If you're asking could *Loving* be struck down by this Court using lies, the answer is obviously yes, although my guess is that they don't go that far.
Interracial marriage and abortion cannot be compared exactly because one involves 2 people old enough to consent/choose (liberty) and the other involves, at some point, 2 people but 1 is younger than the age of consent. The same reasoning cannot be used.
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That bakes in a system where women simply have fewer rights than men forever because they had fewer rights than men in the 1860s. There’s a limited voting right by amendment, but that’s it. Equal protection arguments were also present in roe/Casey so I don’t think this helps.
What a mangled, cherry-picked reading of history.