TX SB8 architect files amicus brief asking SCOTUS to overturn Roe, Casey, Lawrence, and Obergefell

[Hammy]

The electoral backlash would be real

600k died and there was barely an electoral backlash, I highly doubt there realistically would here. Unfortunately most voters simply don't care about anything they aren't personally going through.

[Progressive Pessimist]

The electoral backlash would be real

600k died and there was barely an electoral backlash, I highly doubt there realistically would here. Unfortunately most voters simply don't care about anything they aren't personally going through.

Right, but the thing is that LGBTQ+ issues do affect people more than something like abortion rights would, as far as they see it. It would at least keep Democratic turnout up.

[H.E. VOLODYMYR ZELENKSYY]

Lawerence shouldn't be overturned, the rest should be.

Why?

Because banning gay sex would be too unpopular.

[afleitch]

I love that people think 'oh the public now support x' would stop a conservative activist Supreme Court overturning it.

Lawrence was only handed down in 2003.

[NotSoLucky]

Lawerence shouldn't be overturned, the rest should be.

Why?

Because banning gay sex would be too unpopular.

But why repeal the other ones? I know that Abortion is somewhat polarizing, but most people I assume would want exceptions for rape and incest if it were banned, something the so called "heartbeat bills" in Texas and Mississippi don't have.

As for gay marriage, arguably overturning Oberfell would also be unpopular. There's a reason the republican party mostly stayed quiet about gay marriage after it was decided, because they knew it would be a losing battle in the court of public opinion.

I love that people think 'oh the public now support x' would stop a conservative activist Supreme Court overturning it.

Lawrence was only handed down in 2003.

Like I said earlier, they won't overturn Roe, but they'll corrupt the logic of Planned Parenthood v. Casey and say that the so called "heartbeat bills" are 'not an undue burden on the woman'. Which is a completely bullsh!t way of reading it, but the conservative majority doesn't care.

[SWE]

The electoral backlash would be real

600k died and there was barely an electoral backlash, I highly doubt there realistically would here. Unfortunately most voters simply don't care about anything they aren't personally going through.

Trump got rejected by the voters by the second widest margin of any election in the 21st century, seems a little unfair to blame the voters for the fact that our system counts Republican votes as being worth more for some reason

[NotSoLucky]

The electoral backlash would be real

600k died and there was barely an electoral backlash, I highly doubt there realistically would here. Unfortunately most voters simply don't care about anything they aren't personally going through.

Trump got rejected by the voters by the second widest margin of any election in the 21st century, seems a little unfair to blame the voters for the fact that our system counts Republican votes as being worth more for some reason

It's because the fate of the electoral vote rests on narrow margins in certain swing states. In 2000 it was Florida, and in 2016/2020 it was Pennsylvania, Michigan, and Wisconsin.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Roe was correctly decided as a matter of law. The only quirk is that it was based on the Due Process clause, which isn't really quite right. It should have been based on the Privileges or Immunities clause, but the Supreme Court didn't do that because of old Jim Crow era precedent that got the Privileges or Immunities clause wrong.

However, I agree that Roe should be overturned. Not because it is wrong, but because despite the fact that it is right, it is better that this be decided democratically, so that the country can finally deal with this issue properly and come up with some resolution that not everyone will necessarily like, but at least can accept as being democratically legitimate (that is, at least by those Americans who support the principles of democracy). So hopefully SCOTUS goes judicial activism and ignores the law/constitution and overturns it.

"Roe was correctly decided as a matter of law but should be overturned for policy reasons" is the exact opposite of what most of the forum, and probably a plurality of the legal profession, considers a "reasonable" position on the subject, so congratulations for holding an idiosyncratic view.

Lumping in Lawrence and Obergefell with the abortion precedents in this amicus brief is a massive red flag. The term "saying the quiet part out loud" is thrown around way too much these days, but this is definitely not someone who's invested in the legal and moral issues surrounding abortion for their own sake, rather than as a way of furthering a far broader and deeper reactionary vision of society.

I agree regarding lumping Lawrence and Obergefell in, I was just talking about Roe personally.

As for your restatement of my position as "Roe was correctly decided as a matter of law but should be overturned for policy reasons," I support the pro-choice policy embedded in Roe, the issue is really just a matter of politics, not policy. For many years, Republican politicians have gotten away with saying that they oppose the right to choose without having to actually stand up and vote directly for banning abortion, with the actual effect of it actually being banned, because the courts stood in the way. As a result, they have gotten a free pass without accountability. Politically, it is better for them to be held accountable. Accountability is a cornerstone of democracy; without accountability of elected officials, democracy cannot exist.


On the merits of the law, in the 60s/70s, SCOTUS Justice Hugo Black in particular was reading up a lot on the civil war amendments (especially the 14th) and the radical Republicans (very different from the current "Republican" party) who pushed through the amendments. They had intended for the Bill of Rights (plus some unclear/unspecified enumerated rights) to apply against the states via the 14th amendment. This is what the 2nd sentence of the 14th Amendment refers to:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, this was gutted soon after the civil war by traitorous segregationists and Jim Crow sympathizers on the Supreme Court (primarily in the slaughterhouse cases) and was dead and buried and never heard from for nearly a century. So subsequently, when the Supreme Court started reversing course, and finally enforcing the bill of rights against state governments, and also started moving to finally rule against Jim Crow, they were looking at this. They had a choice; either overrule the earlier segregationist precedent, or ignore it. They went with the John Roberts style solution of overruling it de facto, without actually saying that they overruled it, and simply read it into the clause right after (the due process clause) instead, so that they didn't have to overrule previous (by that point very old) SCOTUS interpretation of the P or I clause. The thing is, the Bill of Rights (in the 9th amendment particularly, though also effectively in some other places) explicitly says that there are unenumerated rights, which therefore also apply via the 14th amendment against the states. This then led to Griswold v Connecticut, which held that "The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights" and then that led to Roe v. Wade.

That looks like just judicial activism/fabrication by the Supreme Court if you are actually just looking at the Due Process clause (which at first glance seems fair enough, since that is what they do refer to). But if you recognize that the P or I clause was intended to do this in the first place, and that really they were just applying the intent for the P or I clause to the Due Process clause, then you recognize that Roe v. Wade was not judicial activism at all. Rather, the judicial activism was conducted 100 years beforehand by the segregationists who gutted the 14th amendment in the first place and stripped it of its intended application. It would probably have been a better call for the sake of clarity for SCOTUS in the 1960s/70s to do this via the P or I clause, but SCOTUS (even the Warren Court) is a small c conservative institution that doesn't like to overrule very old precedent, so they avoided doing that, with the result that they distorted popular understanding of their decision and made it seem illegitimate, when in reality it was not.

John Roberts will now almost certainly try to do a similar sort of thing regarding Roe as SCOTUS earlier did regarding much segregationist precedent; overturning it in reality while not saying that he has overturned it. The only question is if the other 5 partisan Republicans on SCOTUS let him get away with his deceptive trickery, or if they want to say the words "Roe v. Wade is overturned."

I'm familiar with the difference between due process and P&I clauses and I agree with you that the Slaughterhouse interpretation of P&I is unconscionable and is itself judicial activism. Where we part company is on whether P&I should be used to assert a constitutional right to abortion; obviously it can, since unenumerated rights can by definition be whatever a SCOTUS majority says they are, but of the various heuristics that exist for identifying unenumerated rights, only the most subjective and impressionistic ones (out of a set of possibilities that are subjective and impressionistic by their very nature!) strike me as amenable to encompassing abortion.

[Badger]

Let it happen.

Neither Roe nor Obergefell had popular support at the time those decisions went down.  Perhaps that's not true today.  Perhaps state legislatures will pass into law what these decisions have wrought to date.  Both of those decisions have one thing in common; they created "rights" out of Constitutional Whole Cloth.  They are examples of why Americans on both sides of the Spectrum view the SCOTUS as no less "political" than Congress, and certainly not "the least dangerous Branch".

 narrow minded bigot using Christianity as a club to defend their prejudices says what?

[pbrower2a]

Let it happen.

Neither Roe nor Obergefell had popular support at the time those decisions went down.  Perhaps that's not true today.  Perhaps state legislatures will pass into law what these decisions have wrought to date.  Both of those decisions have one thing in common; they created "rights" out of Constitutional Whole Cloth.  They are examples of why Americans on both sides of the Spectrum view the SCOTUS as no less "political" than Congress, and certainly not "the least dangerous Branch".

Obergfell would win as a Constitutional Amendment through state-based referendums . If you don't believe me, then I have some outdated material (about four years old) because the polling on same-sex marriage and adoption ended about then:   

    Two years after Obergfell vs. Hodges,  we find this. Same-sex marriage is accepted as law.

    https://www.prri.org/research/emerging-consensus-on-lgbt-issues-findings-from-the-2017-american-values-atlas/

    Broad, Growing Support for Same-Sex Marriage

    Since the U.S. Supreme Court ruled in 2015 that same sex couples have a constitutional right to marry, support for same-sex marriage has increased substantially. Currently, more than six in ten (61%) Americans say gay and lesbian couples should be able to marry legally, while only about half as many (30%) are opposed.

    Strength of support for same-sex marriage has increased dramatically over the past decade, while strength of opposition has fallen in nearly equal measure. Today, Americans who strongly favor same-sex marriage outnumber those who strongly oppose it by more than a two-to-one margin (30% vs. 14%). In 2007, only 13% of the public strongly favored same-sex marriage, while nearly one-quarter (24%) strongly opposed it.1 Much of this shift has occurred within the last five years. As recently as 2013, more than four in ten (42%) Americans opposed same-sex marriage, including about one in four (23%) who strongly opposed it.2 Over the last five years, strong supporters of same-sex marriage increased only modestly, from 25% to 30%.



    Conservative Republican Holdouts


    Partisan gaps in views of same-sex marriage persist, even as the public has become more supportive of the policy overall. Nearly three-quarters (73%) of Democrats and about two-thirds (66%) of independents favor same-sex marriage, compared to only 42% of Republicans. A slim majority (51%) of Republicans oppose same-sex marriage. However, opposition is mostly confined to conservative Republicans. Nearly six in ten liberal (58%) and moderate (59%) Republicans favor same-sex marriage, compared to only 36% of conservative Republicans. About six in ten (58%) conservative Republicans oppose it.

    Among Democrats, as well, there is a considerable ideological divide. Nearly nine in ten (87%) liberal Democrats say same-sex marriage should be legal, compared to 67% of moderate and 52% of conservative Democrats. Four in ten (40%) conservative Democrats oppose same-sex marriage.

    Liberal independents are roughly as supportive of same-sex marriage as liberal Democrats. More than eight in ten (82%) liberal independents favor same-sex marriage, compared to nearly three-quarters (73%) of moderate independents and fewer than half (49%) of conservative independents. More than four in ten (41%) conservative independents oppose allowing gay and lesbian couples to marry.

    Declining Religious Resistance

    Most religious groups in the U.S. now support same-sex marriage, including overwhelming majorities of Unitarians (97%), Buddhists (80%), the religiously unaffiliated (80%), Jewish Americans (77%), and Hindus (75%). Roughly two-thirds of white mainline Protestants (67%), white Catholics (66%), Orthodox Christians (66%), and Hispanic Catholics (65%) also favor same-sex marriage. A slim majority of Muslims (51%) favor same-sex marriage, but only 34% are opposed; 15% offer no opinion on this issue.

    Over the last five years, opposition to same-sex marriage among nonwhite Protestants has dropped considerably. Most notably, black Protestants have moved from solid opposition to a plurality of support for same-sex marriage. In 2013, nearly six in ten (57%) black Protestants opposed same-sex marriage.4 Today just 43% oppose it, compared to nearly half (48%) who support it. Hispanic Protestants have moved from solid opposition to same-sex marriage to being divided over the policy. In 2013, nearly two-thirds (65%) of Hispanic Protestants opposed same-sex marriage. Today, 43% favor the policy, compared to 45% who oppose it and 13% who offer no opinion.

    Opposition to same-sex marriage is now confined to a few of the most conservative Christian religious traditions. Only about one-third (34%) of white evangelical Protestants support same-sex marriage today, while nearly six in ten (58%) are opposed, including 30% who are strongly opposed. And just 40% of Mormons support same-sex marriage, compared to 53% who are opposed. Jehovah’s Witnesses, a racially mixed religious group, are the exception. Just 13% support the policy, compared to 63% who oppose it. However, nearly one-quarter (24%) of Jehovah’s Witnesses express no opinion on this issue.

    Nevertheless, even those religious groups most opposed to same-sex marriage have become more accepting of it over the last five years. Since 2013, opposition to same-sex marriage has dropped 13 percentage points among white evangelical Protestants (from 71% in 2013 to 58% today).5 Over a similar time period, opposition among Mormons has dropped 15 percentage points (from 68% in 2014 to 53% today).6






    Most States Now Support Same-Sex Marriage


    Recent dramatic shifts in support for same-sex marriage are also evident at the state level. Today, majorities in 44 states believe gay and lesbian couples should be allowed to legally marry, compared to only 30 states in 2014.9 In only six states does the issue of same-sex marriage garner less than majority support: Alabama (41%), Mississippi (42%), Tennessee (46%), West Virginia (48%), Louisiana (48%), and North Carolina (49%). But notably, only one state, Alabama, has a majority of residents who oppose same-sex marriage.
    Substantial regional disparities in views of same-sex marriage are evident. New England is generally more supportive of same-sex marriage than any other region in the U.S. Roughly eight in ten residents of Vermont (80%), Massachusetts (80%), and Rhode Island (78%) support the policy. And nearly three-quarters of Americans living in Connecticut (73%), New Hampshire (73%), and Maine (71%) support it. A number of Southern states have only a slim majority expressing support for same-sex marriage, such as Kentucky (51%), Arkansas (52%), and Georgia (52%).

    Opposition Across the Country

    A majority of Americans in nearly every state believe small business owners in their state should not be allowed to refuse service to gay and lesbian people. Notably, state-level opposition to same-sex marriage or nondiscrimination protections for LGBT people does not reliably predict state-level support for religiously based service refusals. Whereas opposition to same-sex marriage and nondiscrimination protections is concentrated in the South, the states with the lowest levels of opposition to service refusals cluster in and near the Mountain West and Midwest. In three states—Utah (48%), North Dakota (49%), and South Dakota (49%)—fewer than half of residents oppose service refusals. A slim majority of residents of Idaho (51%), Oklahoma (51%), Nebraska (53%), and Montana (53%) object to them.
    In contrast, New England states express the strongest objection to religiously based service refusals. At least two-thirds of residents of Vermont (74%), Massachusetts (70%), Rhode Island (69%), and New Hampshire (67%) oppose allowing small business owners to refuse gay and lesbian customers.

http://generational-theory.com/forum/newreply.php?tid=34&replyto=36246

...I can't easily replicate the map, as I am sure that the polling data is no longer available from the source, and I have no desire to recreate such a map right now.

What I see going on in Texas is what a dying machine does -- getting corrupt and fanatical, trying to entrench its agenda beyond its stay in power. If it really were noble and admirable it would not be so troublesome.