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There's No Constitutional Right to Interracial (or Same-Sex) Marriage, Says the Architect of the Texas "Heartbeat Bill"

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Dale Carpenter | 9.22.2021 12:58 PM

In an earlier post, I noted that the vast majority of the 81 briefs in Dobbs v. Jackson Women's Health supporting Mississippi's 15-week abortion ban were mum about Obergefell v. Hodges, which held same-sex couples have a fundamental right to marry under the 14th Amendment's Due Process Clause. My review also indicates that most of them have relatively little to say explicitly about any of the other substantive due process precedents–preferring to treat Roe and Casey like tumors that can be excised without affecting the rest of the body. This silence may be strategic, but it's nonetheless notable.

The main exception is the amicus brief filed on behalf of Texas Right to Life (TRL), written by Jonathan Mitchell and Adam Mortara. Mitchell was "the conceptual force behind" SB8, the Texas "Heartbeat Bill," which effectively bans abortions after six weeks of pregnancy and authorizes "any person" to seek an injunction and award of at least $10,000 against those who assist women obtaining such abortions. Mitchell was a clerk for the late Justice Scalia and is a former Solicitor General of Texas. Mortara was a clerk for Justice Thomas and is a lead lawyer in the challenge against Harvard's affirmative action program, seeking to have the Court overrule its landmark 2003 decision upholding race-conscious admissions policies. Both have sterling credentials within the conservative legal movement. Their brief will be closely read in the Justices' chambers.

The TRL brief maintains that the constitutional right to abortion declared in Roe and reaffirmed in Casey has no basis in constitutional text or history and that stare decisis should not prevent them from being overruled. So far, so expected.

But there are many other decisions that similarly lack any constitutional grounding, the brief says. Among these is Loving v. Virginia, which struck down a state anti-miscegenation law in part on substantive due process grounds.

Supporters of Roe have correctly observed that this Court has recognized and enforced other supposed constitutional "rights" that have no basis in constitutional text or historical practice. The Casey plurality opinion, for example, noted that right [sic] to interracial marriage from Loving v. Virginia, 388 U.S. 1, 12 (1967), has no textual or historical pedigree, much like the right to abortion that this Court invented in Roe v. Wade. . . 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. (pp. 22-23)

The conclusion that the constitutional right to marry is baseless follows from a larger critique of substantive due process common within conservative legal circles, including among some Justices. But few publicly acknowledge the full........

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