May 3, 2022Liked by James J. Heaney

"The only people who could possibly be surprised by any of this decision are people who have no idea how constitutional rights are identified and no clue what Roe and Casey actually said. Those people5 should read this opinion! (Yes, if you find this outcome in any way surprising, I am talking about you."

What do you make of fears that overturning these "privacy"-based rights in these particular cases threatens other more recently articulated rights such as gay marriage, interracial marriage, etc.?

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I think the best answer to that is Amy Coney Barrett's article "Precedent and Jurisprudential Disagrement," <https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1274&context=law_faculty_scholarship>, which, at one level, has absolutely nothing to do with your question, and, at another level, is exclusively about your question.

Gay marriage was guaranteed by the Court in Obergefell v. Hodges and interracial marriage by Loving v. Virginia. I'll refer to the case names here, mostly.

Alito's draft decision, if released, would threaten the legal basis by which Obergefell and Loving were actually decided. (I think Loving could very possibly have been decided on different grounds which would be more defensible, and it could be re-decided today on those firmer grounds. But the current rationale for Loving is threatened.)

However, there are quite a few precedents on the books today that are (fun fact), completely unjustifiable under our current rules for interpreting the Constitution. That's what Barrett's paper is about: decisions like The Paper Money Cases that were fairly clearly *wrong*, but which will never be overturned, because they have achieved universal acceptance. If someone brought a case against The Paper Money Cases today, their argument might well be correct, technically. But they would still fail. The whole court system is designed to make it really hard to challenge settled precedents, and the courts can't just revisit precedents on a lark; they have to be confronted by that precedent in a legitimate, live "case or controversy."

Once you grasp this, the decades-long campaign against Roe/Casey, which has brought abortion back to the courts over and over and over and over again, hundreds of times, hammering the judiciary, refusing to stay settled is really incredible. That's thanks to a vast national infrastructure of pro-lifers, their volunteers, their activists, their donors, their lawyers, their political allies, their endorsements, their influence on state legislatures and attorneys general and judicial nominees, and, ultimately, a coordinated campaign by several dozen states (backed by thousands of legislators, backed by millions of voters) to force the issue again and again and again. THAT is how you challenge a Supreme Court precedent. It is hard and expensive.

And it has still taken fifty years! All to kill a decision that was obviously wrong the day it was decided! We may still lose!

Overturning Loving or Obergefell would require a similar groundswell, a similar national network. It would require similar election victories. It would require actual U.S. states to say actually, in print, that they want to outlaw miscegenation again. And it would require them to keep doing this, again and again and again, for years or decades. And they might still lose, especially if the Supreme Court finds a new and stronger ground on which to base the right to interracial marriage.

I just don't see that happening. Do you? U.S. approval ratings for interracial marriage are currently at 94%. In the South, they are 93%. <https://news.gallup.com/poll/354638/approval-interracial-marriage-new-high.aspx> Support for OUTLAWING it (as opposed to mere moral disapproval) is even more extreme. Nobody *wants* to outlaw interracial marriage. Therefore, in my opinion, Loving is safe.

I think the same is true for Obergefell. The last Republican president, Donald Trump, supported gay marriage. Gay marriage has majority support EVERYWHERE in the country, and already was nearly there a decade ago. Support is now beyond overwhelming in many places. Obergefell may be insanely stupid (it... is. it really is) and the whole idea of civil marriage as a government concern in the first place may be pretty dumb (see my article, "Civil Marriage Is Dead And It Deserved To Die"!), but there's not enough of an appetite to force cases through the thick walls of lower courts and precedents to directly threaten its core holding.

I do think it may be trimmed at the edges, though. It's not as secure as Loving is. I think, for example, that a case like Pavan v. Smith (2017; Arkansas must issue birth certificates that list lesbian non-biological mother) would probably come out differently today (regardless of what happens in Dobbs, but Dobbs would certainly strengthen it).

Personally, I'd love to see Griswold (right to birth control for married couples) die in a dumpster, because it was legally awful, but I have no interest whatsoever in regulating birth control and neither does anyone else I know, so I can't see WHO would challenge it. Etc. etc.

Does that help?

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