In an earlier post, I noted that the vast majority of the 81 briefs in Dobbs v. Jackson Women’s Health supporting Mississippi’s 15-week abortion ban were mum about Obergefell v. Hodges, which held same-sex couples have a fundamental right to marry under the 14th Amendment’s Due Process Clause. My review also indicates that most of them have relatively little to say explicitly about any of the other substantive due process precedents–preferring to treat Roe and Casey like tumors that can be excised without affecting the rest of the body. This silence may be strategic, but it’s nonetheless notable.
The main exception is the amicus brief filed on behalf of Texas Right to Life (TRL), written by Jonathan Mitchell and Adam Mortara. Mitchell was “the conceptual force behind” SB8, the Texas “Heartbeat Bill,” which effectively bans abortions after six weeks of pregnancy and authorizes “any person” to seek an injunction and award of at least $10,000 against those who assist women obtaining such abortions. Mitchell was a clerk for the late Justice Scalia and is a former Solicitor General of Texas. Mortara was a clerk for Justice Thomas and is a lead lawyer in the challenge against Harvard’s affirmative action program, seeking to have the Court overrule its landmark 2003 decision upholding race-conscious admissions policies. Both have sterling credentials within the conservative legal movement. Their brief will be closely read in the Justices’ chambers.
The TRL brief maintains that the constitutional right to abortion declared in Roe and reaffirmed in Casey has no basis in constitutional text or history and that stare decisis should not prevent them from being overruled. So far, so expected.
But there are many other decisions that similarly lack any constitutional grounding, the brief says. Among these is Loving v. Virginia, which struck down a state anti-miscegenation law in part on substantive due process grounds.
Supporters of Roe have correctly observed that this Court has recognized and enforced other supposed constitutional “rights” that have no basis in constitutional text or historical practice. The Casey plurality opinion, for example, noted that right [sic] to interracial marriage from Loving v. Virginia, 388 U.S. 1, 12 (1967), has no textual or historical pedigree, much like the right to abortion that this Court invented in Roe v. Wade. . . To be sure, the rationale of Loving purported to invoke the doctrine of substantive due process and a supposed constitutional “freedom to marry,” which is nowhere to be found in the language of the Constitution. (pp. 22-23)
The conclusion that the constitutional right to marry is baseless follows from a larger critique of substantive due process common within conservative legal circles, including among some Justices. But few publicly acknowledge the full implications of the argument for the unenumerated substantive-due-process right to marry, much less specifically for the right to marry a person of a different race. Give Mitchell and Mortara credit for candor.
Still, a Supreme Court advocate cannot be heard to question the outcome in Loving. So while rejecting the substantive due process holding, the TRL brief attempts to reach the same result by asserting that “the Civil Rights Act of 1866 provides all the authority needed to set aside a state’s anti-miscegenation law.” That’s because the 1866 Act prohibits racial discrimination under state law in making and enforcing contracts and, the authors assert, marriage is a contract subject to this statute. “So Loving remains good law regardless of whether the Constitution’s text or historical practice can support a right to interracial marriage,” the brief concludes.
This analysis is curious in several ways. First, the TRL brief is essentially saying that marriage rights for interracial couples are secure only by congressional grace, not by fundamental constitutional law. Congress would be free to revoke that protection (though it assuredly would not do so these days). Second, the argument suggests that in 1967 bans on interracial marriage had already been illegal under federal law for more than a century. That certainly would have been news to the 16 states that still had such laws. Indeed, historically, all but nine states enacted anti-miscegenation laws at some point. Third, the TRL brief ignores the independent holding of Loving that bans on interracial marriages are unconstitutional under the Equal Protection Clause. Is there no textual or historical basis for that holding? Fourth, the TRL brief characterizes the issue as involving “a right to interracial marriage” rather than as involving “a right to marriage” that interracial couples must be allowed to exercise.
In places, the brief reads like a progressive parody of the conservative critique of unenumerated constitutional rights–conceiving rights in the narrowest way and then, so conceived, finding no constitutional support for them. But at least TRL finds a way to conclude that states must allow interracial marriages.
According to TRL, however, “the news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage.” The rights announced in Lawrence and Obergefell “are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.” While “far less hazardous to human life,” they are just “as lawless as Roe.”
Here the brief specifically rejects Mississippi’s view that Obergefell might survive in a post-Roe world.
Mississippi suggests that Obergefell could be defended by invoking the “fundamental right to marry” which is “‘fundamental as a matter of history and tradition.'” Pet. Br. at 13 (quoting Obergefell, 576 U.S. at 671). But a “fundamental right” must be defined with specificity before assessing whether that right is “deeply rooted in this Nation’s history and tradition.”See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (requiring federal courts to employ a “careful description” of conduct or behavior that a litigant alleges to be protected by the Constitution, and forbidding resort to generalizations and abstractions). Otherwise long-prohibited conduct can be made into a “fundamental right” that is “deeply rooted in this Nation’s history and tradition,” so long as a litigant is creative enough to define the “right” at a high enough level of abstraction. The right to marry an opposite-sex spouse spouse is “deeply rooted in this Nation’s history and tradition”; the right to marry a same-sex spouse obviously is not.
Like the “right to interracial marriage,” according to TRL, the “right to same-sex marriage” is nowhere to be found in the Constitution. There is no right to marriage in the text, so there is of course no right to marriage that same-sex couples must be allowed to exercise. Further, TRL says, states must even be allowed to criminalize sexual intimacy in the privacy of gay couples’ homes.
What’s notable about this line of argument is how unremarkable it is in mainstream conservative legal critiques of substantive due process, Obergefell, and Lawrence. It’s a critique some of the Justices endorse. No doubt many of Mississippi’s amici also share it, although they are not as forthcoming.
In the end, Mitchell and Mortara say they are not necessarily asking the Court to overrule Obergefell and Lawrence right now, but they believe it would be nice if the Court wrote “an opinion that leaves those decisions hanging by a thread.”
There are many ways to distinguish abortion from gay marriage, some of which are relevant to constitutional law. Among other things, both equal protection and stare decisis will figure differently in these contexts. But if the influential architect of SB8 and his widely respected co-author somehow persuade a majority of the Justices to write an opinion eviscerating substantive due process, one thread supporting Obergefell will be a lot easier to cut.
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