Recalling Alito’s dissent in the same-sex marriage cases

May 9, 2022

[Audio version here]

          In the leaked opinion overturning Roe and Casey, Justice Alito claims that the absence of a “deeply rooted tradition” precludes constitutional protection for the right of women to obtain abortions. Alito assures readers of his draft opinion that his reliance on the “deeply-rooted-tradition” analysis does not extend to other privacy-based rights, such as same-sex marriage. That is not what Justice Alito said in his 2015 dissent in Obergefell v. Hodges, the case in which the Supreme Court recognized constitutional protection for same-sex marriages. Here is what Alito wrote in 2015 regarding same-sex marriage:

          To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition.’ And it is beyond dispute that the right to same-sex marriage is not among those rights.

          Under Alito’s dissent in Obergefell, there is no constitutional difference between abortion and same-sex marriage—because neither is “deeply rooted” in our nation’s tradition and, therefore, in Alito’s view, are “are not among those rights” protected by the Constitution. Like Alito’s leaked draft opinion, his dissent in Obergefell relies on oppressive historical practices to deny recognizing liberties inherent in “life, liberty, and the pursuit of happiness.” In objecting to same-sex marriage, Alito denigrated the notion that “romantic love” was a valid basis for allowing same-sex couples to marry. Alito wrote,

          This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

          Justice Thomas joined Alito’s dissent in Obergefell in 2015. Since that time, Gorsuch, Kavanaugh, and Barrett have joined the Court and adopted Alito’s “deeply-rooted” analysis in voting to overturn Roe and Casey. All Americans should rightly worry, “What liberties will be under attack next?” Alito put everyone on notice in his dissent in Obergefell that a future majority of the Court might base their rulings on “their own sense” of what is tolerable under current politics and culture:

          If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.

          Over the weekend, Mitch McConnell signaled that “those with political power are willing to tolerate” a nationwide ban on abortion. See Talking Points Memo, McConnell Says National Abortion Ban ‘Possible’. Alito’s draft opinion says that it is time to “return the question of abortion to the people’s representatives”—a vague reference that suggests the possibility of a nationwide ban. But before Congress acts on abortion rights, it will be illegal in two dozen states.

           Polling organizations wasted no time declaring that the impending loss of abortion rights will not affect the midterms. See CNN, CNN poll: The Supreme Court’s draft opinion on Roe v. Wade hasn’t shaken the midterm landscape. Hmm. . . it seems a teensy bit premature to be conducting polling about the effect of the upcoming Dobbs opinion on the midterms. While I suppose CNN deserves some credit for running a poll within days of the leak, the rapidity of the poll also raises questions about whether respondents understand the full implications of what is about to happen to them.

          The decision will shift the focus of the midterms from congressional races to state legislative and gubernatorial races—which are far more likely to affect women’s access to abortion going forward. See, e.g., The Hill, Abortion fight puts spotlight on governors. Driving turnout to “down-ballot” races can help Democrats—a fact acknowledged by the GOP’s effort to avoid talking about abortion. See USA Today, “GOP officials are advising to candidates to soft-pedal the prospects of anti-abortion legislation as they battle Democrats for control of Congress.” Arkansas Republican Governor Asa Hutchinson said over the weekend that McConnell’s plan for a national abortion ban was “inconsistent” with what Republicans have been fighting for.

          Indeed, the ruling may have an impact on some high-profile Senate races. When Marco Rubio was asked about the effect of the ruling on his race, he timidly said that he “not a political consultant” and tried to change the conversation to immigration and China.

          Democrats, on the other hand, intend to make the ruling a centerpiece of 2022. And some Democrats are finally talking about expanding the Court as a way to deal with a reactionary majority that has jettisoned precedent and the Constitution in their effort to impose conservative Christian ideology on all Americans. See The Hill, Roe v. Wade draft fuels Democratic calls to add justices to Supreme Court.

           After decades of focusing on the Senate and the Supreme Court to protect reproductive rights, the struggle moves to state legislative districts, many of which turn on the votes of a few thousand (or hundreds) of voters. Many of those legislators serve part-time and have tiny campaign budgets. A small band of determined people can flip a state legislative district—which might be enough to break up a GOP trifecta and prevent legislation criminalizing abortion. It is time for Democrats to refocus their ground game. The battlefield has narrowed in size but expanded in stakes. Let’s get to work!

Putin’s war on the Ukrainian people.

          Russia’s cruelty rose to new heights as it targeted a school serving as a bomb shelter, killing as many as 60 civilians.

          Putin may make a surprise announcement on May 9th—the anniversary date commemorating Russia’s victory over Nazi Germany. But against Putin’s desire for a symbolic victory, Ukrainian forces are pushing back Russian forces northeast of Kharkiv—and may push the Russian army back to the Russian border. See Institute for the Study of War, Russian Offensive Campaign Assessment, May 7.

          Some critics have questioned the effectiveness of sanctions against Russia. A few declared them a failure when Russia invaded Ukraine despite the threat of sanctions. Others have recently noted that the ruble has regained much of the value it lost in the early days of the war, and Russia avoided default on its sovereign debt (for now). As to the effect of sanctions in Russia, a reader sent a link to a fascinating article by Yevgenia Albats in Moscow Times, A Heart-to-Heart With Russia’s Elites. Albats is a Russian investigative journalist, and Moscow Times is an independent Amsterdam-based English-language and Russian-language online newspaper.

          If you want to understand the effect of sanctions, I urge you to read the “Heart-to-heart” article by Albats. The sanctions have had a devastating impact on millions of Russians on whom Putin relies for continued tenure in office. For example, in 2019, Putin convinced 7 million wealthy Russians to begin investing in government “mutual funds” that supposedly financed the manufacture of tanks, missiles, and aircraft to attack Ukraine. The amount invested exceeded 7 trillion rubles. When Kyiv was bombed on February 24, 2022, the value of those “mutual funds” evaporated. As a source for the article said,

And in the blink of an eye, all those mutual funds with their trillions ceased to exist. That is, they exist, but in Russia there is no stock market, which means that the value of stocks is unknown, not to mention the fact that investments in foreign securities are simply frozen until the day after forever.

          Imagine if the 7 million wealthiest Americans lost a substantial portion of their wealth because Biden induced them to invest in valueless war bonds. Putin now has 7 million new doubters—if not enemies—within Russia. So, as you hear about the latest round of sanctions, don’t assume they are symbolic. No, they are having a significant impact inside Russia—which is good. Some of the younger millionaires / billionaires refer to Putin as “Grandpa,” a term meant to signal an expiring shelf-life rather than familial affection.

MAGA crowd boos Dr. Oz at Trump rally.

          As a reminder that Trump is not the “king-maker” he claims to be in Republican primaries, a MAGA crowd repeatedly booed Dr. Oz as he appeared beside Trump at a rally for Oz’s campaign for US Senate. See Rolling Stone, Trump Supporters Couldn’t Stop Booing Dr. Oz at Pennsylvania Rally. That is not reception Trump hoped to garner for “his friend” Dr. Oz.  

          So, too, with a Trump appearance on behalf Charles Herbster, candidate for Governor in Nebraska. Herbster is mired in controversy over multiple allegations of sexual harassment / groping. Trump, of course, dismisses those claims as baseless. Having Trump waste his energy and political capital on a damaged candidate is a good development for Democrats. See, e.g., Jon Ossoff’s victory over David Perdue.

Concluding Thoughts.

          A reader sent a link to a cartoon by Ali Solomon in which one woman is saying to another woman, “For Mother’s Day, my mom would like the activism of her youth to not be for nothing.” The comment works on many levels (as good humor does), but its most important message is that the next generations of women (and men) must step up to the challenge. But the “older” generation has a special obligation as well: this is a time in history when we must lead by example. Words and donations are necessary, but not enough. Our presence is needed at public demonstrations, in neighborhoods knocking on doors, and in state legislative hearings on reproductive rights bills.

          People are still reeling from the leaked draft. More than anything, they need to know that others are willing to stand by them in town squares and state legislatures as they engage in a struggle that seems overwhelming. But remember back to the struggle for same-sex marriage. It seemed like a distant hope—until it wasn’t. The barriers fell with unexpected rapidity. The same may be true here. Anti-abortion forces overreached, and the Supreme Court granted them relief beyond their expectations, putting them wildly out of step with the American people. That is not a situation that can long endure. Keep up the pressure and inspire the next generation to pick up the standard—just as someone inspired you “in the activism of your youth.”

          Talk to you tomorrow!