Sunday, December 05, 2021

Dobbs--and Griswold, Lawrence and Obergefell

Jason Mazzone

At the oral argument in Dobbs, Mississippi's SG was asked whether overturning Roe and Casey would similarly call into question and invite new challenges to the Court's decisions in Griswold, Lawrence, and Obergefell. The state SG's response was, in essence, that those three cases are different in that they draw clear and workable lines in a way that Roe and Casey do not. That's not a very good answer. (Indeed, many of the state SG's answers throughout the argument didn't strike me as very strong. Part of the problem was that the justices didn't give him a chance even to complete a sentence before interrupting. I kept hoping he would do what Alan Dershowitz and other advocates used to do when arguing before the Court: keep talking so as to be able to finish the answer.) Surely a better response is something like this:  Many people continue to believe Roe and Casey are wrong and multiple states would like to be free to restrict abortion in ways those cases do not permit. There is, however, no evidence that any state is interested in banning contraception (Griswold), criminalizing same-sex intimacy (Lawrence), or repealing same-sex marriage (Obergefell) and there are no serious political movements seeking to achieve those ends. But so what if in the future states do ban contraception, punish gay sex, and bar same-sex marriages? Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds.                      

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