Lawyer Asks Supreme Court To Go Ahead And Use Abortion Case To Not Leave Gay Rights 'Hanging By A Thread' While They're At It

And why not throw out the opinion protecting interracial marriage too?

Jonathan Mitchell, the Texas attorney who just successfully gutted Roe v. Wade by convincing the Supreme Court to allow vigilantes to enforce a six-week (which isn’t really six weeks) ban on abortions has thrown himself into the upcoming Mississippi abortion case with an amicus brief that really pulls out all the stops. If you’re laboring under the assumption that conservative legal thought isn’t just one big activist power play, check out this brief, because this is what happens when FedSoc stops being polite and starts getting real.

While no one expects Roe and Casey to survive Ruth Bader Ginsburg’s hubris the current Supreme Court lineup, Mitchell isn’t content to let this flimsy opening go to waste on a mere abortion opinion when he could pile even more on the Court’s table.

This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.

That seems like a lot of bootstrapping to get out of a case challenging an abortion restriction. [NOTE: Mitchell claims that it’s false to suggest that the above paragraph amounts to a call to overturn Lawrence and Obergefell. As you can see above, the first sentence does signal hesitance. The second sentence… reads, at least to me, much less cautious.] But Mitchell’s got the whole thing mapped out in his head. It all starts with the Court using this case to also overrule Loving v. Virginia.

So the Court must determine whether it can overrule Roe without cutting the legs from under Loving and other substantive-due-process pronouncements. Mississippi’s brief is sensitive to this concern, as it goes out of its way to distinguish Griswold, Lawrence, and Obergefell.

Mitchell is pretty sure that the Mississippi brief was written by a bunch of RINO cucks who don’t respect an opportunity to bring back miscegenation when they see it. Well, in fairness, Mitchell thinks overruling Loving would have little to no impact because the Civil Rights Act of 1866 would cover interracial marriage — which seems empirically disproven by the existence of the landmark case in the first place, but whatever. The point is, Loving established a new “right” which means it needs to face the chopping block along with Roe. [NOTE: Mitchell also objects to this, claiming that his brief says Loving was correctly decided. Having re-read it a few times, it’s unclear where he expresses that view. Indeed, the brief also says explicitly: “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.” He does, as the original article notes, say that the outcome was right for statutory reasons, while directly questioning the logic of the opinion itself.]

And while ripping up one set of civil rights, why not carry it over to get some more?

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These “rights,” like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence. Mississippi suggests that Obergefell could be defended by invoking the “fundamental right to marry” which is “‘fundamental as a matter of history and tradition.’”

This is a good time to point out that I hate Justice Kennedy’s opinion in Obergefell, and even appeared on TV that night to say that while it hopefully settled marriage equality on a de facto basis, the decision to justify the opinion based on a fundamental liberty interest as opposed to equal protection grounds risked coming back to haunt us. And here it is! This is the sort of Cassandra-like insight you get when you book me on cable news.

Because if we’re going to wipe away unenumerated rights retained by the people when it comes to Roe, it’s a logical, if demented, hop and skip to blowing up Obergefell too.

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 is “deeply rooted in this Nation’s history and tradition”; the right to marry a same-sex spouse obviously is not.

See… now an equal protection analysis would avoid this whole issue. But instead we have to read briefs like this for the next couple of decades.

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Because people like Mitchell aren’t crazy outliers, they’re the heart and soul of the conservative legal movement and their reading of these precedents is only held in check by how far their hand-picked justices are willing to go for fear of losing the Court’s institutional credibility, and that’s a fear that will only carry them so far before the public is numb to the next envelope-pushing moment. That’s when the reasoning above crosses over from the amici to Thomas’s pen.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.