By David T. Valentin
It’s only been three weeks since Texas enacted the Texas Heartbeat Act, a law that would see through a six-week abortion ban that relies on private individuals who would enforce the ban and giving them chance to sue anyone who performs or facilitates an “illegal” abortion. Now they move swiftly to overturn civil rights protections against LGBTQ+ people and, quite possibly, many others.
One of the main architects of Texas’ SB, Jonathann Mitchell, helped write another brief for Texas just yesterday about “inviting the courts” to overturn cases like Roe & Casey and Lawrence & Obergefell.
For Roe & Casey, the ruling concluded that abortion was a constitutional right. And with Lawrence & Obergefell the ruling “challenged a Texas anti-sodomy law that classified consensual, adult anal intercourse between two individuals of the same sex as illegal sodomy as violative of the equal protections guaranteed by the 14th Amendment…” in the end, the sodomy laws in Texas, and 13 other states were removed.
According to Constituting America, Justice Antonin Scalia and Justice Clarence Thomas “wrote a dissent… in his dissent that this decision would lead to a future ruling by the court that homosexual marriages are acceptable. Thomas also penned a dissent, calling the Texas law ‘uncommonly silly’…” Essentially, overturning the Court’s decision would allow for government to once again interfere in the private lives of citizens, private lives that are, according to some, not constitutionally protected by the Constitution.
As stated in the brief published yesterday (which can be read in full here), which concludes with a section titled “The Argument That Overruling Roe will undermine Other Precedents of the Court” argues that the Court “has recognized and enforced other supposed constitutional ‘rights’ that have no basis in constitutional text or historical practice (Page 22)”
The last few concluding paragraphs go over rulings such as Loving v. Virginia (a ruling which eliminated all race-based legal restrictions on marriage in the United States) which they deem to “remain good law regardless of whether the Constitution’s text or historical practice can support a right to interracial marriage” because they promote anti-miscegenation law (laws enforcing racial segregation).
Although the brief argues that marriage rights are not constitutionally protected by everyone but rulings such as Loving are protected (or so they say) due to anti-segregation laws, the same cannot be said about rulings such as Lawrence and Obergefell.
As it states, “The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence…
“The right to marry an oppositive-sex spouse is ‘deeply rooted in this Nation’s history and tradition’; the right to marry a same-sex spouse is obviously not./ This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.”