"In a solo concurring opinion, Thomas says the court should reconsider rulings that protect contraception, same-sex relationships, and same-sex marriage."
> Loving v. Virginia, 388 U.S. 1 (1967), was a landmark civil rights decision of the U.S. Supreme Court in which the Court ruled that laws banning interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution.
Substantive due process is far shakier. It's Justices deciding what rights they think people should have and then working backwards as best they can to justify them. The back to back gun rights & abortion rulings lays it bare. There's just no intellectually honest way of finding a right to an abortion but not a right to bear arms.
IMHO, the substantive due process was the wrong way about this. It was a shaky foundation and as more rights were found the logic got shakier. They should have used the right to peacefully assemble and based most of these substantive due process cases on them.
This is literally 99% of a Supreme Court justice's job.
Here it is in its entirety:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Please point out the part of that amendment that references the right of people to have concealed carry for the purposes of self defense. Because it seems to me that they tried to be as obtuse and textualist as can possibly be with regards to Roe, but apparently the second amendment grants all sorts of rights that don't actually exist in the Constitution.
Interracial marriage has existed for pretty much all of human history (though race as a concept likely didn't, at least not the way it is perceived in modern times). Heck you even have Moses marrying an Ethiopian woman and his siblings spoke out against him over it and were punished by God for it (see Numbers chapter 12).
Gay marriage, on the other hand, has near zero historical precedence outside of a few cases with Roman emperors and stuff like that.
Gay marriage has existed for as long as marriage has, it’s just best documented when it involves emperors.
https://en.m.wikipedia.org/wiki/Timeline_of_same-sex_marriag...
But you know what doesn’t have a long historical precedence? Automatic weapons, or protecting money as speech.
You're describing the "living constitution"[1] view, which has not been the dominant position among Supreme Court justices for some time.
Now they're all "strict constructionists"[2], who think the opposite of what you describe: that the constitution should be interpreted just as it was written.
I’ll grant you automatic weapons though
It has, but not as a right. The Hippocratic oath specifically bans it:
> Similarly I will not give to a woman a pessary to cause abortion.
— Hippocratic Oath (AD 275, or earlier)
> Interracial marriage has existed for pretty much all of human history
is not the answer to the question originalism is asking. It asks whether there is a historical precedence for protecting that action as a right.
You don't need to look any farther than this very ruling! Abortion has been practiced since the beginning recorded history (and likely much longer) and books like the bible even instruct you on how to perform one. That history has no bearing on Alito or Thomas.
Not really, that depends on which translation of Numbers 5 you're looking at. It's not clear at all that the "Ordeal of Bitter Water" was supposed to induce a miscarriage.
to be clear, its pretty irrelevant to the argument because the bible is just one such example of the history of abortion. There are hundreds more and if it would help you can pretend I mentioned one of those instead.
The approach that Thomas favors is "text, history, and tradition". The words - as written - taken in light of what the author(s) intended and what was happening at the time.
https://www.thenation.com/article/society/abortion-ethics-ge...
As best I can tell it would be entirely legal for the US government to sell someone sentenced to life in prison to a private party.
That would be an anomaly in setting judicial precedent. If legal precedent was formally acknowledged for historical reasons, then we would be having a really long conversation on civil rights, _all_ civil rights.
And the issue may not be gay marriage, but straight up sodomy laws, which were introduced as religious inspired laws, most extensively Judeo-Christian. For these to stand, we would need to ignore the separation of church and state.
"In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell,"
This sounds like it needs a source.
As far as I understand, anti-abortion laws started getting traction in the 1800s. Before that, these were scattered and mostly religious inspired. Also, Hammurabi doesn't make any references to voluntary abortions.
The court found otherwise, you can read the majority's evidence in their opinion at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf starting on page 17:
"The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U. S. ___, ___ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” 2 DeLegibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–61 (H. Richardson & G. Sayles eds. 1955) (13th-century treatise)."
They go on for a few pages going over common law before discussing the historical record in the US.
Unsure if you're presenting that as the human history that exists "in Thomas's mind" or actual history
It has been abundantly clear to everyone that a black man can impregnate a white woman. And a black woman can have children with a white man. If this act (reproduction) is what marriage is about, then the sexes are not equal, and thus not worthy of equal protection. A man cannot impregnate a man. Whereas, any race can impregnate / be impregnated by any other race as far as we can tell.
If you have evidence to the contrary (that both sexes are identical when it comes to reproduction, which is the historical view of marriage Thomas may adhere to; or that various races cannot interbreed), then please do share.
> However, if one views marriage as a precursor to reproduction -- the historical view of marriage...
The historical purpose of marriage is the exchange/pursuit of status and resources[1]. Reproduction was an inevitable outcome of lack of contraceptives. The idea of reproduction being the primary purpose of marriage is pretty recent.
[1] https://www.psychologytoday.com/us/articles/200505/marriage-...
Historically, and actually still today, if you have actual reasons you can't conceive (for example, if a man cannot get an erection due to permanent and incurable impotence), then yes, the marriage can be declared anulled. Annulment is different from divorce because it makes it such that the marriage never existed at all at anytime. In other words, yes, certain conditions preventing conception can be used to claim that a marriage was fraudulent.
In certain legal jurisdictions, a castrated man cannot marry. While that may not always be true today, it has been the case historically. Prior to the modern day, people did operate under the assumption that those who certainly could not conceive could not marry, but of course, they didn't have the full understanding of conception we do.
> The historical purpose of marriage is the exchange/pursuit of status and resources
Yes, and the purpose of status and resources is to pass those along to your children. Also your article mainly talks about 'love' and marriage not reproduction.
> The idea of reproduction being the primary purpose of marriage is pretty recent.
This is completely baseless. Thomas Aquinas writes about the purpose of marriage as being for procreation. Given that at the time he wrote he represented an organization that represented the majority of moral thought in Europe... it's hard to actually believe these ridiculous claims. Moreover, status and resources were the main pursuit of the rich. The poor still married... usually for kids.
Source: https://www.newadvent.org/summa/5049.htm
> It would seem that the "sacrament" is not the chief of the marriage goods. For the end is principal in everything. Now the end of marriage is the offspring. Therefore the offspring is the chief marriage good.
Given that Aquinas is also pulling from historical sources (in this cases the Sentences by Peter Lombard), it's extremely likely this idea -- written very clearly in the 13th century -- originated well before then. What's modern is the claim that the chief aim of marriage in previous centuries was status / resources. Everyone in previous centuries understood that the way in which marriage produced those goods was children. A woman from one family marrying into another noble family would have little claim over her new status if the couple were unable to produce offspring. If a man had no offspring to inherit, the status and resources would end.
MORE SOURCES FROM EVEN EARLIER
In the 5th century, Augustine of Hippo clearly indicates in his treatise 'On the Good of Marriage' that offspring are one of three benefits of marriage (along with faithfulness and the sacrament of matrimony itself). In the summa, Aquinas attempts to argue which of these is the 'chief' good of marriage. Thomas believes the sacrament of matrimony itself is the chief good. Now, most here don't necessarily have the religious view of marriage (nor do they need to), but aside from the sacrament, it's faithfulness and offspring that remain. Nowhere there is status and power. And these men are again writing on the predominant moral system of the Western world for the past thousand years.
Going to secular philosophers, Aristotle (from whom Aquinas derived a lot) also consistently writes that marriage is for children. His other aims of marriage are community stability and pleasure. Again, nowhere does status and power appear.
Couples without children can adopt children, regardless of the gender of the parents.
Here's a Utah law firm offering advice on how to annul your marriage should you have found the man you married to be unable to have sex: https://www.isfma.com/law-and-order/when-ending-a-marriage-o...
Here's a review of case law in BC from the 2000s: https://disinherited.com/family-law-matters/annulment-for-no...
Scientifically, one cannot know if you're sterile until you've tried. There's no 'test' for sterility that truly works or that there hasn't been an exception too. Legally, once a marriage is fully consummated, it's more permanent than if it weren't. Historically, a marriage that was consummated could not be dissolved and was considered permanent at that point, so even if you later found out (usually after many years) that you couldn't have kids, the marriage would continue. Similar to how old people stay married.
I'm giving an historical view on marriage. Not saying how things should be. You seem incredulous at this view, but it was the prevailing view of marriage in Europe and the West for thousands of years.
I understand your position. On your point about why people think marriage is a right… I suspect this is because, at present, many rights are coupled with marriage - visitation rights at a hospital being the classic example.
This isn't about originalism. This is about the sitting judges' religious beliefs.
This is the droid you're looking for: https://www.npr.org/2022/05/18/1099542962/abortion-ben-frank...
It reiterates the thesis of the first article: "It just wasn't something to be remarked upon. It was just a part of everyday life."
Griswold - contraceptives
Lawrence - same-sex sexual relations
Obergefell - same-sex marriage
Neither party has had the votes to do that in a while (2/3rds in both the House and the Senate). It must also be ratified by 3/4ths of the states (38 right now).
Not going to happen for a long time.
Edit: Quick scan show the last time a party had 2/3rds majority in both was 1965-1967 (https://en.wikipedia.org/wiki/Party_divisions_of_United_Stat...)
The founders had no qualms about strongly disenfranchising people. The founders were NOT good people by any measurement.
An amendment on an issue this polarizing would never get the requisite support from enough states, no to mention that it doesn’t even matter if you control three branches of government to pass an amendment, only Congress is involved in the process.
Do you really think that a Republican controlled Congress for the majority of the 2010s would have allowed such a law to remain on the books?
Do you really think no superfluous law is ever passed...? The books are full of them.
> such a law would’ve be repealed the moment republicans regain control of the congress
Maybe, or maybe it would have increased Democratic majorities and forced Republicans to face a politically dangerous repeal or even a major policy switch.
Politicians are ready to go with the flow... see for example gay marriage in the UK, which was cautiously introduced by Labour as a separate formulation and then brought into full existence, with great fanfare, by a Conservative Party that had been staunchly against it for decades prior.
A comment ago you were complaining about political theater, how is passing superfluous laws anything but political theater?
> Maybe, or maybe it would have increased Democratic majorities and forced Republicans to face a politically dangerous repeal or even a major policy switch.
This suggests to me that you aren’t very familiar with the last 50 years of American political history.
I see half of the US becoming economically fallow as a result of this decline into dystopia.
But otherwise, I agree, this will just further the red states' economic bankruptcy.
Unable to show concrete reliance on Roe and Casey them- selves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States 26 (citing Obergefell, 576 U. S. 644; Law- rence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” be- cause it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently dif- ferent from marital intimacy,” “marriage,” or “procrea- tion”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision con- cerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion
https://int.nyt.com/data/documenttools/supreme-court-abortio...
They are rearing for another battle in the gay rights culture war.
----------
[1] https://texasgop.org/wp-content/uploads/2022/06/6-Permanent-...
None of this is the will of the people.
We have six jurists with an extremist legal view called “originalism” which is “let’s imagine I’m a white male in 1800, what would I think about X”. The first Supreme Court decision to mention originalism was in 1994, when Scalia dissented because he thought juveniles should be executed.
I'm not about to dignify such an obvious bad-faith argument as is represented by your parody of originalism.
Sounds like a good argument against allowing late term abortions, and a good argument against banning them outright.
It’s hard to believe there is such ignorance out there that pregnancy isn’t even considered an inconvenience by some men, let alone a life threatening event. If I can object to my corpse being used for organ donation to save lives, a woman should be able to object to her organs being used to support the extreme demands of a growing fetus. But now we are in the odd situation of corpses having more bodily autonomy rights than women.
This is like an 8th grade textbook understanding of US government. It doesn't actually work that way.
Just like we don’t legislate that you can’t kill plants for the sake of the plant, a fetus spends up to 18 weeks in a non-sentient state where it has no subjective experience. It doesn’t need protection since a non-sentient being can’t suffer.
Edit: it’s also worth mentioning that many abortions happen at the zygote or embryo stage, before there is even a fetus.
I’ve taken to defining nihilism as being so dedicated to an ephemera and philosophy, harm to real people is ignored.
This decision gives states to impact interstate business. It controls what doctors and patients can discuss. So it goes a good long way to squashing other rights in deference to pudding brains traditions. They chose not with logic but delusion.
Figurative identity preferences are being leveraged to directly control human agency.
I don’t owe coddling anyone else’s sensibilities. There is no greater good. And I hope this society collapses around us and reminds the majority how meaningless their personal self image is to others.
So the issue is really what the hell is wrong with the states where the people elected feel empowered to take rights away from half their populace.
As I just said in my chosen Mastodon instance:
“Ever since today’s Supreme Court decision was leaked, some have said that this oddly might hurt the Republicans in future elections — i.e., they’ll no longer have Roe v. Wade to use against the Democrats. However, this ignores what made today possible: the power of the Christian Right, particularly those whose votes won’t be erased by some currently running for office on promising to make it harder for anti-Rightists to vote (or have their votes count).”
Those of you who don’t have a lot of exposure to that culture, and the way it has completely taken over a good chunk of American politics — not to mention one of the two major U.S. political parties — in the last forty-plus years, will find today a shock. And wait ’til you see what else they have in mind.
Of the following two forces, the Christian right and the atheist Marxist left, I promise you the latter is far more shocking, dangerous, and self-destructive to America.
Remind me which side is threatening supreme court justices right now? That looks an awful lot like insurrection: https://news.yahoo.com/protesters-descend-amy-coney-barrett-...
Remind me which side is planning to engage in acts of domestic terrorism this very weekend? https://aleteia.org/2022/06/24/department-of-homeland-securi...
And if you say something like, "these people don't represent us," You can probably guess I'll respond: the small number of men who rioted at the capitol without any actual realistic plan to perform a coup don't represent us either.
Leftist activists, unfortunately, are much smarter about what it takes to really overthrow a government, and they've been in it for the long haul for almost a century now.
People loudly protest all the time, that isn’t the same thing as “domestic terrorism” even if some property gets damaged or relatively few people get hurt. By that definition the civil rights movement would have been domestic terrorism. You know what is domestic terrorism? Firebombing abortion clinics and murdering doctors like some “Christian” right members have done.
Frankly the people who stormed the Capital are a sideshow. The real coup was directed from the highest seats of government to prevent the peaceful transition of power, and the mob was merely a minor part of the plan. The real action was in getting Pence out and selecting alternate electors illegally sent.
The protestors were breaking the law: https://www.aei.org/op-eds/protesting-at-justices-homes-is-i...
"it is unlawful to protest near a “residence occupied or used by [a] judge, juror, witness, or court officer” with the intent of influencing “the discharge of his duty,”"
What they were doing clearly amounts to intimidating the justices, including by putting them in harm's way by announcing their home addresses on the Internet.
https://www.britannica.com/topic/insurrection-politics
"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."
What they are doing is illegally engaging in rebellion against authority. It is insurrection.
I also can't believe you are calling this "protesting loudly":
"The DHS agent reportedly told the diocese that “large groups with cells nationwide have already been discovered ‘casing’ parishes, including here in California.”"
What they are planning to do, is, in fact domestic terrorism. Your condemnation of the right while supporting the terrorism of the left is very revealing. At least people on the right are willing to condemn both. We at least have principles.
So unfortunately they seem to say violence is more likely from all sides as the result of this. Even with that, arson attacks are more serious then vandalism. So to date both sides aren’t equally indulging in violence.
I have condemned terrorism on the left, for example eco-terrorism (which seems to have thankfully died off). I didn’t read the DOJ notice, but it is important to note their job is to take the worst case scenario and plan for it. I haven’t seen widespread attacks on parishes and don’t honestly believe they will occur. Some insane portion of people on both sides issue a lot of dumb threats but only rarely are those threats executed on. If they do I will of course condemn them. But I will always place more emphasis on events which have actually happened, not just hypotheticals. For example the recent troubling incident in Idaho where a few dozen men with guns were headed to attack a parade. Multiple studies have shown that 90+% of domestic terrorism is linked to the right wing.
I do not support harassing judges, but I hardly think that rises to any level of insurrection. They weren’t attacking the authority of the government or even of the justice in question. I doubt most of them even intended or expected her to change her mind. Even if you are right and they were attempting to unduly influence her, that wouldn’t be undermining her authority but relying upon it.
It reflects the current reality - justices have become partisan so people believe they are entitled to treat them as any other partisan politicians, who as elected officials are required to be accountable to the people. We should prevent that. Justices not acting as naked partisans would help, as would both parties compromising and writing laws again so fewer things of import are decided by unelected justices. Controversial decisions should allow both parties share some of the blame, because any good society requires controversial decisions to be effective.
By the way, if protesting outside a justices home is insurrection, then the right is guilty again - they protested outside numerous state election officials homes to attempt to pressure them to violate their oaths to keep Trump in power. They also issued numerous death threats, which thankfully didn’t happen. And published home addresses.
We need to step down from this level of rancor and return to democracy in action. The broad public is in agreement on most things and supports reasonable compromises, but our governmental structure has stopped making them viable.
FTFY
Any such legislation could be immediately undone if Republicans take things back.
SCOTUS could strike it down, too.
It can't happen because 30% of republican primary voters are evangelicals, so every republican will vote against abortion protection, even if most of their constituents want it.
It would serve people better.
If state A wants to ban abortion based on what their constituency wants, isn’t that exactly how democracy works?
[1] https://www.cambridge.org/core/journals/perspectives-on-poli...
It is a serious flaw is the US system that issues that carry supper majority support in the public for decades have no chance of making it into the constitution.