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https://twitter.com/lilyastrah/status/1538722394621083648?t=tDleWZI4qSExt6lnRMm0iQ&s=19
https://twitter.com/lilyastrah/status/1538722399763374081?t=XpfFh8s-nj8LTDGPO6noOg&s=19
https://twitter.com/lilyastrah/status/1538722404872007682?t=2ikTWJuBnuDSr3ivC7nZ-A&s=19
https://twitter.com/lilyastrah/status/1538722410068725761?t=90QbrhKYi4ATYf6ietNQAg&s=19
https://twitter.com/lilyastrah/status/1538722415106134018?t=-CkTXw1ChBXXuyKcnHvdsw&s=19
https://twitter.com/lilyastrah/status/1538722420302893056?t=LYpP5c7mg-j6ZjOWXMlVjg&s=19
https://twitter.com/lilyastrah/status/1538722399763374081?t=XpfFh8s-nj8LTDGPO6noOg&s=19
https://twitter.com/lilyastrah/status/1538722404872007682?t=2ikTWJuBnuDSr3ivC7nZ-A&s=19
https://twitter.com/lilyastrah/status/1538722410068725761?t=90QbrhKYi4ATYf6ietNQAg&s=19
https://twitter.com/lilyastrah/status/1538722415106134018?t=-CkTXw1ChBXXuyKcnHvdsw&s=19
https://twitter.com/lilyastrah/status/1538722420302893056?t=LYpP5c7mg-j6ZjOWXMlVjg&s=19
I think there is stare decisis that should be respected and decisions that should be overturned (Buck v Bell comes to mind). Obergfell seems to have pretty much settled the debate on gay marriage in this country, no one is seriously still protesting it. They only things you still find are people that don't want to personally participate, like the baker in Colorado that they are hounding to death. On the other hand, RBG herself thought Roe was wrongly decided, as you've educated me, and neither Roe or PPP v Casey have come close to settling the abortion debate the way Obergfell settled the gay marriage debate.
You keep saying that RBG herself thought Roe was wrongly decided.....which isn't really exactly what I said....I said that she is an incrementalist that favored only deciding the issue before them rather than broad sweeping pronouncements....that what they should have done is Roe is find the law in question unconstitutional on other grounds that left open the debate for further advancements and determinations of the breadth of the protection.
Furthermore, Obergfell was a 5-4 decision, with three of the four Justices dissenting still on the bench and two very socially/politically conservative, but potentially jurisprudentially activist, justices replacing Kennedy and RBG.
I think it is ridiculous to say that Obergfell settled the debate in a way that RvW and Casey (both longer held decisions than Obergfell, btw) didn't when there are multiple political bodies, specifically advocating for overturning Obergfell as we speak and when three of the Justices dissenting in Obergfell are still on the bench and nearly half of the majority in that decision having been replaced by socially conservative judges that are, as we speaking, over-ruling longer held precedent of the court.
I'm not predicting it will happen. I just think it is ridiculous to claim it's beyond the pale to be concerned that it could happen.
Furthermore, Obergfell was a 5-4 decision, with three of the four Justices dissenting still on the bench and two very socially/politically conservative, but potentially jurisprudentially activist, justices replacing Kennedy and RBG.
I think it is ridiculous to say that Obergfell settled the debate in a way that RvW and Casey (both longer held decisions than Obergfell, btw) didn't when there are multiple political bodies, specifically advocating for overturning Obergfell as we speak and when three of the Justices dissenting in Obergfell are still on the bench and nearly half of the majority in that decision having been replaced by socially conservative judges that are, as we speaking, over-ruling longer held precedent of the court.
I'm not predicting it will happen. I just think it is ridiculous to claim it's beyond the pale to be concerned that it could happen.
I don’t know the legal theory that would take place to overturn Obergefell, but I have 100% confidence that a red state w national foundation backing will target a specific clause in the Constitution w very specific statutory language whose design is to pull a thread to get gay marriage unraveled at the federal level. Then it will be left to the states. They will find the right legislators in the right judicial district (judges favorable to their cause) and will draft the language to win a lower court ruling. Then it will be appealed to SCOTUS where 3 dissenters to Obergefell still remain, 1 dissenter replaced by Gorsuch and 2 in the majority have been replaced by Kavanaugh and Coney.
It would look a lot like the reasoning Alito is presenting in the leaked brief on the Mississippi case...in fact largely identical.
From Alito's dissent in Obergfell:
"Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.
I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.
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 tradition.’ ” Washington v. Glucksberg, 521 U. S. 701 –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) (slip op., at 7). "
Here's some of the language in the leaked abortion draft opinion....
"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision - including the one on which the defenders of Roe and Casey now chiefly rely: the Due Process Clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” The right to abortion docs not fall within this category."
All Alito would need to do is convince two of Trump's appointments that he was right in in his Obergfell analysis, and then apply the exact same reasoning as he did seven years ago in Obergfell and which is also largely the same reasoning in the leaked Dodds opinion (and with which Trump appointed Justices appear to agree with).
Declare that there is no fundamental right to same sex marriage mentioned in the Constitution or "deeply rooted in this Nation's history and tradition" and therefore no Due Process Clause violation or right to even bother protecting equally under the Equal Protection Clause.
From Alito's dissent in Obergfell:
"Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.
I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.
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 tradition.’ ” Washington v. Glucksberg, 521 U. S. 701 –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) (slip op., at 7). "
Here's some of the language in the leaked abortion draft opinion....
"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision - including the one on which the defenders of Roe and Casey now chiefly rely: the Due Process Clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” The right to abortion docs not fall within this category."
All Alito would need to do is convince two of Trump's appointments that he was right in in his Obergfell analysis, and then apply the exact same reasoning as he did seven years ago in Obergfell and which is also largely the same reasoning in the leaked Dodds opinion (and with which Trump appointed Justices appear to agree with).
Declare that there is no fundamental right to same sex marriage mentioned in the Constitution or "deeply rooted in this Nation's history and tradition" and therefore no Due Process Clause violation or right to even bother protecting equally under the Equal Protection Clause.
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We certainly know there are three SCOTUS Justices that would almost surely vote to overturn Obergfell because there is no substantive right to marriage amongst individuals of the same sex to bother giving equal protection to.
We also know that there are at least three other SCOTUS Justices that are seemingly in agreement with Alito's draft opinion that there is no substantive right to any abortion to bother giving equal protection to.
We also know that there are political parties and sitting legislators that are on the record advocating for taking action to get such a possibility in front of those SCOTUS Justices.
We also know that there are at least three other SCOTUS Justices that are seemingly in agreement with Alito's draft opinion that there is no substantive right to any abortion to bother giving equal protection to.
We also know that there are political parties and sitting legislators that are on the record advocating for taking action to get such a possibility in front of those SCOTUS Justices.
