Sotomayor's warning on marriage equality: They will destroy it
The alarming Supreme Court hearing on Mississippi's anti-abortion law this week is a preview of what's to come on LGBTQ rights and other issues.
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Oral arguments at the Supreme Court this week in a challenge to Mississippi’s law banning all abortions after 15 weeks made it abundantly clear — even to the theocrats, who were cheering — that the court is poised to overturn or severely narrow Roe v. Wade.
And as Justice Sonia Sotomayor underscored in questioning Mississippi Solicitor General Scott Stewart, the court’s conservatives also will pave the way for stripping other rights grounded in the 14th amendment, including marriage equality:
[In] Casey [v. Planned Parenthood] and in Roe, the Court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them. We've recognized them in terms of the religion parents will teach their children. We've recognized it in -- in their ability to educate at home if they choose. They just have to educate them. We have recognized that sense of privacy in people's choices about whether to use contraception or not. We've recognized it in their right to choose who to marry.
Stewart’s response was weak and ambiguous to Sotomayor’s clear statement that overturning Roe would lead to easily overturning other precedents that are grounded in the Constitution’s equal protection clause.
So Justice Amy Coney Barrett — who also didn’t seem to be buying Chief Justice John Roberts’ feeble attempt at a twisted compromise that would gut Roe rather than overturning it — cut in to try to save Stewart’s ass, asking:
Would a decision in your favor call any of the questions -- any of the cases, sorry, that Justice Sotomayor is identifying into question?
Stewart, solicitor general of a state that has passed draconian anti-LGBTQ laws allowing for discrimination — and which fought marriage equality to the bitter end — disingenuously replied:
No, Your Honor, I -- I think for a couple reasons. First of all, I think the vast run of those cases, and some mentioned from time to time are Griswold, Lawrence, Obergefell, these are -- these are cases that draw clear rules: you can't ban contraception, you can't ban intimate romantic relationships between consenting adults, can't ban marriage of people of the same sex. Clear rules that have engendered strong reliance interests and that have not produced negative consequences…
First off, this is ludicrous because conservatives have indeed argued — and will continue to argue — that same-sex marriage is devastating, and has in fact produced “negative consequences” to the institution of marriage and to the family; that children of same-sex couples are being raised in a “perverted” environment and “indoctrinated” into homosexuality; that schools are being “forced” to teach “acceptance” of these families and thus the “perverted lifestyle;” that bakers and florists are being forced to “cater” to this affront to their Christian faith; that landlords are being made to allow this “lifestyle” on their property; and that employers who are Christian are made to hire workers who might be living in this sin.
I could go on and on. Mississippi itself has the most sweeping law on the the books among the states allowing discrimination against LGBTQ people in all spheres of life — and this Supreme Court let it stand — which was passed precisely because of what conservatives see as the “negative consequences” of marriage equality.
Stewart goes on to say: “Also, I'd add none of them [the other cases] involve the purposeful termination of a human life.”
But as Sotomayor noted, when it comes to abortion, his definition of human life and when it begins comes from a religious point of view — grounded in Christian evangelicalism — as philosophers, scholars, politicians and others have debated when life begins for centuries. And I would add that to evangelical Christians, same-sex marriage is equivalent — as a terrible sin — to having an abortion. They don’t see any difference. And they are calling the shots on what cases will move forward up to the Supreme Court by the right-wing officials they elect in gerrymandered red states.
Responding to Justice Stephen Breyer regarding overturning precedents, Stewart tried to argue there was something special about Roe, which conservatives have argued is law that is made up by the Supreme Court — though they’ve in fact said the same about the Obergefell marriage equality decision and many others. Stewart said, “I can't think of another [decision’] that kind of hits the radar [to overturn precedent.]”
Sotomayor, not taking any crap, swiftly exposed this dishonestly:
I'm not sure how your answer makes any sense. All of those other cases -- Griswold, Lawrence [v. Texas, which bans sodomy laws], Obergefell -- they all rely on substantive due process. You're saying there's no substantive due process in the Constitution, so they're just as wrong according to your theory.
Stewart lamely replied that the other decisions looked to “ text, history,” which supposedly makes them different, but Sotomayor pointed out that “in Obergefell, there was no history of…[legal] same-sex marriage.” She concluded that Stewart was just “dissimilating when you say that any ruling here wouldn't have an effect on those.”
The second thing about this series of exchanges that was sinisterly dishonest was Barrett positing that marriage equality and other rights based on precedents will be safe if Roe goes — as if she wants to save marriage equality. This is a person whose backers and alliances — the people who groomed her and got her on the court — have been quite clear for years that they do not want same-sex marriage in America.
As I wrote last year when Trump and McConnell were rushing her onto the court:
Barrett, while a professor at Notre Dame Law School before she was on the appeals court, took money from a legal group determined to overturn same-sex marriage, re-criminalize homosexuality in the the United States and around the world, equates homosexuality with pedophilia, and backs forced sterilization of transgender people abroad.
In giving that lecture to the Alliance Defending Freedom, a legal group that has been the greatest threat to LGBTQ equality in the Trump era, defending those who’ve desired to legally discriminate based on their religious beliefs, she exhibited her animus and her goal.
The idea that Barrett somehow is going to respect precedent on Obergefell while kicking it to the curb on Roe is pure fantasy. As Mark Joseph Stern at Slate noted, throughout the hearing this week both Barrett and Justice Brett Kavanaugh showed their cards on ditching precedents they don’t like.
And Barrett had shown them before as well. In a 2013 law review, Barrett wrote, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
That is enormously disturbing considering what Barrett said in 2016, backing Chief Roberts’ hostile dissent in the Obergefell marriage equality decision of 2015: “Justice Roberts said those who want same-sex marriage, you have every right to lobby in state legislatures to make that happen, but the dissent’s view was that it wasn’t for the court to decide...So I think Obergefell, and what we’re talking about for the future of the court, it’s really a who decides question.”
And that is exactly the question posed about Roe this week — who decides? — and Barrett and the court’s theocratic conservative majority similarly made clear that they and their backers think the states should decide. It’s hard to believe they won’t come to the same conclusion about many other issues they and their backers find offensive, including LGBTQ rights.
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