Haunted by the ghosts of settled law

26 July 2022

Last week the House passed bills to protect federal recognition of interracial and same-sex marriage as well as birth control. If you didn’t read the 200-page opinion in Dobbs v. Jackson, you might be confused about why the House is passing bills to protect rights that are already settled law. Well, the reason is it’s not settled law.

The rightwing supermajority of the Supreme Court has given us a road map for how interracial marriage, birth control, private sexual behavior, same-sex marriage and abortion are linked. Sure, Justice Alito gave some assurances that despite connecting all these cases the opinion was only meant to apply to abortion. I wouldn’t trust such an assurance any more than I would trust these justices’ assurances that Roe was settled law in their confirmation hearings.

Liberty required privacy

Roe protected the right to an abortion in the due process clause of the 14th Amendment under the theory that a fundamental right to privacy is central to personal liberty. Roe, and later Casey, relied on precedent to support this claim, including Loving v. Virginia (interracial marriage), Griswold v. Connecticut and Eisenstadt v. Baird (birth control) and Skinner v. Oklahoma (forced sterilization).

The opinion also links post-Casey cases, including Lawrence v. Texas (private sexual behavior, specifically sodomy) and Obergefell v. Hodges. Alito promised the opinion only threatens abortion for two reasons: that the 14th Amendment is meant to protect rights “deeply rooted in history” and that none of the other decisions deal with the “critical moral question posed by abortion” or “potential life.”

Alito shouldn’t be trusted, but he’s undermined by Justice Thomas’ dissent, which says all substantive due process decisions should be reconsidered, including Griswold, Lawrence and Obergefell.

Deeply rooted

Why is Alito’s assurance unconvincing?

Let’s start with the bizarre claim that the 14th Amendment is not meant to protect rights that are not “deeply rooted in history.”

That’s obvious nonsense. There’s nothing to suggest that ratifiers of the 14th Amendment felt this way, especially since the whole point of the amendment was to confer rights on people who had been enslaved for most of our history and had no “deeply rooted” rights.

(NOTE: The 14th was also a more aggressive enshrinement of the first civil right act. Nothing to do with deeply rooted history unless that means our history of treating Black people like property.)

It also isn’t comforting for the other cases discussed here since none of those rights are “deeply rooted” in our history. Interracial sex was first prohibited in 1662. Birth control was ignored, just as abortion was, until it was criminalized in the late 19th century, and there were no legal protections for gay people until the 1960s.

As for the second distinction, that only abortion deals with such a critical moral question or “potential life,” certain types of birth control are already being targeted by anti-abortion laws.

Furthermore, who is to say what conservative justices will consider a “critical moral question.” With Christian fascism gaining power, I think we can imagine sliding these into a critical moral question.

No such thing as settled law

While conservatives and moderates try to gaslight us into trusting that the rest of our rights are safe, congressional Democrats are fortunately taking seriously the threat posed by the Dobbs opinions.

In response, the House passed the Right to Contraception Act to protect contraception and the Respect for Marriage Act. The latter would formally repeal DOMA (the Defense of Marriage Act), which was moot after Obergefell, but technically on the books. It would also guarantee federal recognition for interracial and same-sex marriage.

Both had wide GOP opposition but the Republicans have assured us that that’s just because the bills were “unnecessary,” considering the case law, not because they opposed protecting such rights.

This is a particularly ironic justification since the Defense of Marriage Act (federally declaring marriage between a man and a woman) was also unnecessary since gay marriage was illegal.

These bills are unlikely to pass the Senate. Moreover, we are likely to see legal challenges to such rights in the coming years. Arguably, some forms of birth control are already implicated in anti-abortion laws, especially if such laws confer personhood at fertilization.

We have Alito’s doublespeak and Thomas’ explicit attack against these rights but Republicans are also blatantly telling us that they’re coming for gay marriage, birth control, and interracial marriage.

There is no such thing as settled law anymore.

Legislating race

I think it would be much harder to revive anti-miscegenation laws than to take away other rights. Since race is a social construct and does not make sense, laws legislating race also don’t make sense.

After slavery ended, courts across the country struggled for 100 years to try and construct some consistent legal framework for adjudicating race. They failed miserably.

Most miscegenation cases were brought by husbands trying to annul their marriages or estate challenging a wife’s inheritance.

In one case, a judge relied on testimony about the shape of a woman’s calves to determine that she was one-eighth Black.

In another case when the state challenged the marriage of a Black man and an Italian woman, the judge ruled that the marriage was valid because really who knows what race those Sicilians are?

Some statutes were even written in such a way as to prohibit mixed-race people from marrying anyone since they are technically both white and Black. The California anti-miscegenation statute was successfully struck down using a freedom of religion argument in Perez v. Sharp, because a couple wanted to marry in the Catholic Church that permitted interracial marriage.

I don’t trust Republican lawmakers to care about interracial marriage, but I do question their ability to write laws that require the adjudication of race that actually makes sense.

Popular and fundamental

The freedom to marry who we want and engage in private sexual behavior using birth control are fundamental to liberty and privacy.

The state supposedly has an interest in protecting marriage unions but that interest must apply to all marriages for every citizen.

We cannot trust the Republicans to see these rights safe.

Do not let them vote against these bills by claiming that they’re “unnecessary.” Any Republican who votes against birth control – and gay and interracial marriage – must be forced to answer for it.

These popular fundamental rights must be vigorously fought for the way we wish abortion had been protected when we had the chance.

Updated July 27, 2022 to correct some language.

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