Tuesday, June 28, 2022

You Read It Here First

Thomas, one of the most conservative justices on the court, wrote that "in future cases" also involving privacy "we should reconsider."

Thomas cited Griswold v Connecticut, which enshrined the right to contraception in 1965; Lawrence v. Texas, which struck down laws penalizing same-sex relationships in 2003, and Obergefell v. Hodges, the 2015 ruling protecting marriage for all.

According to Greenhouse, there was one past ruling that Thomas curiously failed to mention.

"I think we disregard what [Justice Thomas] has to say at our peril," Greenhouse said. "I'll just say, in this list of Supreme Court precedents based on the notion that the due process clause has some substantive content of liberty and equality, he left out on -- I mean, he named contraception, he named LGBTQ rights, he named same-sex marriage -- what he didn't mention was interracial marriage."

Greenhouse was referring to the Loving v. Virginia decision in 1967, which ruled that laws banning interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. Thomas, who is Black, is married to Ginni Thomas, who is white.

"It's as if the court has taken a kind of Roto-Rooter to constitutional law as we've known it in modern times," Greenhouse added.

The only opinion that affects Thomas (who probably lives in Virginia, ironically) is the only one he wants to keep sacrosanct.  There is no basis for that except Alito's rebuttal to Thomas in Dobbs, that "abortion is different."*  So, apparently, is mixed race marriages.

You realize we don't even have the conceptual framework for this stuff anymore.  Race?  Are we really going to legally recognize that distinction again, in the most pernicious way possible?  What about who's responsible for an abortion?  Texas law won't criminalize the woman (it used to; that's how Roe got into court in the first place), but it will try to criminalize everyone else it can.  And some want to make it a RICO violation:

Yes, it is silly (and yes, Popehat is also indicating it could happen). But it also indicates the desire to criminalize any activity or person even remotely or conjecturally related to the abortion (so persons in states where abortion is legal. Somehow the resident of a non-abortion state, say, Texas, will be engaging in criminal activity in New Mexico, where abortions will remain legal, even if it's just acting as an Uber driver to the airport. Which is kind of interesting, since the activity is in New Mexico, where it's legal. But that brings us back to Loving: the couple was married legally in another state, but when they moved to Virginia, they became criminals. Are we really going to go back to that state of criminal prosecution? What is legal here is criminal there, so watchyerass? Will the country accept it? (Or even back to the idea that state's don't have to recognize marriages from other states they don't like?  Which was really the issue in Obergefell.  I don't see any state rushing to criminalize marriages because they don't like who's marrying whom.)*

Same question with Obergefell, which really is not fundamentally different from Loving (except Justice Thomas says so, by silence at least).  And Lawrence, where the State of Texas (again!) had criminalized same sex...well, sex.  As far as I know that sodomy law is still in the Texas Criminal Code.  But who's going to enforce it if Thomas has his way?

*Yes, minors create an exception everyone is going to recognize (hopefully.  I understand Tennessee wanted to drop the age of marriage to 13.).  Minors are a special category protected by law from abuse and from the consequences of their own decisions.  Most of the major ones they can't make (buying a car, entering a contract, marriage) because of their age.  That's what being a "minor" is, by and large.

Except, I guess, in Oklahoma:
And while I've still got you here speaking of where you heard it first, Sen. Johnson agrees with me: the joint session was never in any danger of adjourning over the electors presented, or not presented, to them. Much else of what he says is just random bullshit, but the kernel of truth is there: that "plan" was never gonna happen.  It would take a vote of both houses, and the Democrats were not going to vote for it, in either house. Mike Pence didn't have the power to blow up that joint session, even if he thought he did.

*Alito’s distinction is that abortion involves a third party, which is obviously a determination that life begins at conception. So legislating from the bench is cool? Regardless, marriage involves the imprimatur of the state, which means the rest of us. Pretty much the same people involved in a charge of murder, which is what critics call abortion, especially if life begins at conception. So the fundamental difference escapes me. Again.

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