Getting Past Legal-ese

A bipartisan bill aimed at protecting the right of same-sex and interracial couples to marry passed the U.S. House of Representatives Tuesday (07/19/22). The bill is a response to concerns that the Supreme Court could roll back more decisions, similar to its overturn of Roe v. Wade last month.

The bill, the Respect for Marriage Act, passed 267 to 157, with 47 Republicans joining their Democratic colleagues.  It's too soon to welcome the millennium, though. All opposition came from Republicans, including Pennsylvanian Mike Kelly of Butler (R-PA 16) and five other Pennsylvania House members.

It’s very important for the American people to understand that same-sex marriage is already the law of the land. The 2015 Supreme Court case, Obergefell v. Hodges, made that very clear, Kelly said in a statement. With just 16 days left in session before Election Day, Speaker Pelosi and the Democrats are forcing the House of Representatives to vote on bills that are already law so they can create a false narrative and deflect from their failed economic and energy policies, which are costing Americans more and more money.

Sorry, Mr. Kelly; that doesn't hold water. Here, including a healthy dollop of legal-ese, is why.

The majority of 81 briefs in Dobbs v. Jackson Women's Health, which briefs supported Mississippi's 15-week abortion ban, were mum about Obergefell v. Hodges. GOTV suspects the reason for the lack of argument was the principle upon which the decision was based - that same-sex couples have a fundamental right to marry because of the 14th Amendment's Due Process Clause.

In addition, most of these briefs have little to say about any of the other substantive due process precedents mentioned by Clarence Thomas. But, one exception is particularly relevant in this context: the brief filed on behalf of Texas Right to Life, written by Jonathan Mitchell and Adam Mortara. Mitchell is the author of SB8, the Texas Heartbeat Bill, which effectively bans abortions after six weeks of pregnancy and authorizes any person (can you say vigilantes, boys and girls?) to seek an injunction against anyone who assists women in obtaining abortions.  Said vigilante may also win an award of at least $10,000 ...

GOTV isn't paranoid; history matters. Mitchell was a clerk for the late Justice Scalia and is a former Solicitor General of Texas. Mortara clerked for Clarence Thomas and led a team challenging Harvard's affirmative action program. Both have stellar reputations within the conservative legal community. In a nutshell, their 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. No surprise there. Problem is, according to this brief, there are many other decisions that similarly lack any constitutional grounding. Among these is Loving v. Virginia, which struck down a state anti-miscegenation law on due process grounds. The brief contends that the Civil Rights Act of 1866 provides all the authority needed to set aside such laws. That's because the 1866 Act prohibits racial discrimination under state law in making and enforcing contracts and, the brief's authors assert, marriage is a contract subject to this statute.

This analysis is curious for more than one reason. Essentially, it says that marriage rights for interracial couples cannot be established by fundamental interpretations of the Constitution. Also, the argument suggests that, in 1967 and because of the 1866 law, bans on laws that forbade interracial marriage had been in place for more than a century. That certainly would have been news to the 16 states that still had such laws in '67.  In fact, all but nine of the United States had, at some point in their history, passed anti-miscegenation laws, with the last of these (in Alabama) removed only in 2000.

Like the right to same-sex marriage, no specific reference to a right to interracial marriage ca be found anywhere in the Constitution. In what must warm Clarence Thomas' originalist heart, there is no reference at all to marriage in our foundational document. Further, the Mitchell – Mortara brief proposes that states be allowed to criminalize sexual intimacy in the privacy of gay couples' homes.

What's scary about all this? Just that, with SCOTUS now chock-full of conservatives, Mitchell and Mortara might easily be able to persuade Thomas et al that substantive due process means little or nothing. AKA as Thomas implied, any question, such as interracial marriage, that might rely on due process, and on precedent regarding that, can be tossed aside.

GOTV wonders where Pennsylvania candidates for the House of Representatives stand on questions such as due process and stare decisis, especially as they affect issues like interracial  or intra-gender marriage.

Watch this space …