Proposed: Dobbs will NOT overturn same sex marriage, contraception, et al

I’ve been away from the board, but have heard the hysteria. Dobbs will supposedly overrule Griswold, Lawrence, and Obergefell. Some commentators have even said that Brown or Loving (interracial marriage) is in danger.

I humbly submit that these ideas are absurd because the opinion in Dobbs specifically said that these cases are different because they don’t involve a disputed idea about a human life. Sure, Clarence said differently, but Clarence has always been different and his ideas have never come close to carrying the day. He cites himself in his opinions. I love Clarence, but nobody (maybe 1/2 of Gorsuch) is Clarence.

And further, what evidence is there that these are real things instead of Democratic talking points? What state wants to ban condom sales? What state wants to ban interracial marriage in the year 2022?

I propose that it is electoral talking points.

And as an example, if I was Justice Ultravires on the Supreme Court, I would write a (insanely unlikely) challenge to Obergefell as follows:

  1. It was egregiously wrong as an initial matter.

  2. However, it doesn’t involve any dispute about human life or property. See Dobbs.

  3. It is easily administrable. You just say that two guys can get married like a man and a woman could before. Easy peasy. No disputes about undue burdens and substantial obstacles.

  4. Many thousands (millions?) have relied on Obergefell to plan their lives. The Court created that so we are not going to undo it.

I feel that Alito and others (except Thomas) would rule the same way in the unlikely event that Obergefell was directly challenged. Thoughts?

I am dubious that a Supreme Court justice like Clarence Thomas - a Black man married to a White woman - is going to vote to overturn Loving. The liberal/conservative split is very close, and with Thomas most likely to vote with the liberals on that issue I don’t see inter-racial marriage being in jeopardy. Of course, one can never rule out a fit of stupidity, but I think it unlikely.

While I have not considered the position of the current line of of the SCotUS in regards to this matters it is clear from the abundance of political bullshit literature piling up in my mailbox/e-mail/text messages/voice-mail (how did I get on a calling list for a group of local Republicans in freakin’ Utah?!?) that there are people out there agitating to restrict access to various types of contraception, abolish same-sex marriage, and insert government into out bedrooms to regulate the type and frequency of sex we’re having. Ironically enough, these folks most often claim to be members of a party that speaks words about getting government off our backs. To be fair, genitalia are not backs, but the point being this party purports to be in favor of reducing government meddling and regulation, yet seems to desire government oversight of sex and reproduction. This is hypocritical.

So long as there is a engaging in scary propaganda don’t be surprised that a different party is pushing back, often using the exact same tactics.

Dobbs was a lesson that our rights are not actually protected against extremists. Our best bet is to enshrine them through Constitutional amendment, the second best is to ensure we keep politically motivated liars off the Supreme Court and to shore our rights up via legislation. The second lesson from Dobbs was that waiting until it’s too late because you assumed your rights were protected via previous SCotUS decisions and “no one is really serious about…” is a sucker’s bet.

I am a conservative Republican. Aside from a handful of nutjobs, I know of no serious movement to outlaw contraception or push to overrule Obergefell. I know of no movement at all to outlaw interracial marriage or resegregate schools. Seriously, what state in 2022 would even debate passing a new anti-miscegenation law? What single SCOTUS Justice would vote to overrule Loving?

Nobody joined Thomas’ concurrence in Dobbs. I think the other conservatives on the Court are like me. They are wary of substantive due process and will not extend it further. However, they would not overrule cases like Griswold, Lawrence, and Obergefell for the stare decisis factors I mentioned above. Thomas has never been a fan of stare decisis at all.

Come now. You’re telling me that this came from nowhere? The GOP has made it clear that they wanted to overturn Roe for years. It has been a central theme. Trump said in the debates he would appoint justices to overturn Roe. Also, nobody lied about it. Every candidate for the Supreme Court, I think in my whole lifetime, on both sides, declined to answer the Roe question.

Roe was always in play. Griswold is not. I submit that the idea that we would go back to the 1800s on some of these things is an absurd idea manufactured to scare people.

I submit that Dobbs illustrated that people’s rights are not guaranteed and waiting until there’s a “legitimate threat” (and letting conservative Republicans define what counts as a threat) before taking steps to protect your rights now is dumb.

That said, conservative Republicans could eliminate this “electoral talking point” by pushing to codify these rights rather than relying on the now-proven shaky framework of “Well, it’s (heh) ‘settled (haha) law’ (haha suckers)…”

All I know is every time a conservative calls me an hysterical pearl-clutching reactionary for not believing them….whether it’s “We all consider Roe v Wade to be settled law” or “Of course Trump will accept the results of the election if he loses”, it turns out they are lying.

Lying is a core value among religious conservatives, like the ones that make up the cult that groomed Amy Coney Barrett for her current job. It’s sometimes called “lying for the Lord” and it’s considered a virtue.

They absolutely will go after birth control, because they believe the prime mechanism of certain types of birth control is the prevention of implantation.

They aren’t correct, just like they aren’t correct when they say women can’t become pregnant during rape, but that doesn’t matter because they are expert, practiced lying liars that lie.

they absolutely will go after birth control, because their goal is not “to protect innocent life”, it’s to oppress women and regress society back to the point where it’s not acceptable for a woman to be anything more than wife and mother.

Will they go after interracial marriage? Maybe not, but I wouldn’t be surprised if even Thomas doesn’t advocate for “leaving it up to the states” - his response will be that it’s hunky-dory because he has the choice to reside in a state that recognizes his marriage.

I guess we just disagree. This didn’t sneak up on anyone. It was out there for decades. There is no serious attempt to do away with the other things.

As far as codifying Obergefell and the like, that goes beyond what I was saying. It is not that Alito or Roberts’ views of the constitution have changed in seven years, it is that stare decisis is a real thing. To stand by Obergefell does not mean a support for positive law enacting it.

That was a non-answer answer and it was always meant to be. All law is settled until it is not. Literally nobody at the time was (or should have been) thinking that it meant that the candidate would vote to uphold Roe because every candidate specifically declined to answer that question.

Well, that’s why smart people will work to defend and protect their rights instead of depending on “Aw, there’s no real threat”.

We’re not going to codify these rights but trust us when we tell you that they’re safe hopefully won’t work a second time.

Are you implying that people said “trust us, Roe is safe”? Nobody said that and everyone was on full notice that the GOP had tried for decades to overrule Roe. You cannot seriously claim that this was a surprise.

I guess my point in starting the thread is what evidence is there that these other rights are in danger because of Dobbs when the opinion specifically said that they were not? Is it just, bah, we don’t trust those pesky conservatives on the Court? That a pretty slender reed to hang all of the hysteria in the articles.

Is the argument pure emotion and distrust?

Honestly, it doesn’t matter. Fine, let’s just say that no one ever implied that Roe was safe.

We’re not going to codify these rights but trust us when we tell you that they’re safe is still a dumb reason to be complacent about protecting your rights.

Not really. Most rights that people consider very important and personal are not codified. I think taking a young child out for ice cream is a wonderful thing for a family. Nobody is pressing for that to be codified in federal law as a right. Why? Because nobody is trying to take that right away.

To get on board with a similar enactment for contraception, same sex marriage, or anti-miscegenation laws, you should have to show a real danger there. If you can’t show that then the number of positive laws we should enact would be boundless.

No one had to fight for it either. If “take your children out for ice cream” took decades (or more) of political fighting against fervent opposition, people might feel differently.

Says who? You? Again, letting conservative Republicans define when you should start protecting your rights is stupid.

Well, faith in the Supreme Court IS at an all-time low for a reason…

Nobody has been thrown in prison for liking ice cream.

I’m not implying it, I’m saying it’s true that “people” said exactly that.

And it didn’t take long to find this, I could probably find some more.

Seriously. This court has proven that belts AND suspenders sure can’t hurt.

What I am saying is that nobody in 2022 would be “thrown in prison” for having a same sex or interracial marriage or for buying a condom at the pharmacy. To suggest otherwise, at least in my humble opinion, requires incredible proof because nobody who has any political power is seriously suggesting that such things be outlawed. Oh, but Clarence. Yes, as a constitutional matter, he would reverse those cases. That doesn’t mean that anyone would still pass those laws. They are dead letter issues unlike Roe which was under attack from the start.

You have two left wing sources which goes against what was publicly said. Every Republican president had attacked Roe and advocated for its reversal. Trump said, in the debate, on national TV, that he would appoint Justices who would overrule Roe. Its reversal has been the subject of every single confirmation hearing for the last 40 years. You cannot reasonably say that this was shocking. It was probably the #1 issue that continued for decades of debate and was questioned of everyone running for office.

If only someone started a thread on that …

And yet, we are left with bad law like The Slaughterhouse Cases and Wickard because of stare decisis.


The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).

Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition. SOURCE

I think we are waaaay past taking conservatives’ word that anything is safe or out of bounds.