Jonathan Mitchell, the man behind the vigilante-enforced Texas abortion bill, is encouraging the Supreme Court to take a whack at marriage equality next.
The ramifications of SB 8, the new citizen-enforced Texas abortion law, are working their way through the legal system. Attorney General Merrick Garland announced earlier this month that the Justice Department would file suit against Texas, arguing that the law be declared invalid as it falls afoul of the Supremacy Clause. After Dr. Alan Braid announced in the Washington Post that he performed an abortion in Texas after the six-week window for ethically and medically valid reasons, two suits were filed against him by disbarred lawyers from outside Texas. One, under house arrest, hopes to collect the “bounty,” while the other seeks to overturn the Texas law, with Dr. Braid volunteering as a test case at great personal risk. Meanwhile, Jonathan Mitchell, the mind behind the Texas law, has moved on to new targets. He appears to be gunning for sodomy law repeals and marriage equality next.
Mitchell filed an amicus brief with the U.S. Supreme Court on behalf of Texas Right to Life concerning a case to be heard in December which challenges a Mississippi law that bans most abortion procedures after 15 weeks. The case, Dobbs v. Jackson Women’s Health Organization, represents a major challenge to Roe v. Wade. Mitchell’s brief suggests that overturning Roe, a decision he calls “lawless,” would have no major effects since it wouldn’t ban abortion, only turn it over to the States. He imagines a post-Roe world where women could still control their own reproductive lives by “refraining from sexual intercourse” (and, presumably, refraining from being raped or conceiving embryos with severe abnormalities) and that if worse comes to worst, they could simply travel to a state like New York or California where abortion would surely remain legal and might even be subsidized by taxpayers for out-of-state abortion tourists.
One could be forgiven for finding Mitchell’s reasoning less than reassuring.
In the brief, Mitchell and his co-author Adam Mortara indicate that they may be planning to go after marriage equality next. According to the text, we might be enjoying fake rights, “judicial concoctions” as Mitchell and Mortara call them, that have no basis in the Constitution or in American “history and tradition.” Besides abortion, they cite other “lawless” decisions, including Lawrence v. Texas, which struck down sodomy laws across the United States in 2003, and Obergefell v. Hodges, which won same-sex couples the right to marry in 2015.
Mitchell points out that by overturning Roe, the Court might be afraid of unraveling other “substantive due process” decisions like Loving v. Virginia, the 1967 case that resulted in laws against interracial marriage being declared unconstitutional (despite having “history and tradition” behind them). He reminds the Court that marriage is a contract, and that Loving could be upheld by invoking the Civil Rights Act of 1866, which states that “citizens, of every race and color, … shall have the same right, in every State and Territory in the United States, to make and enforce contracts… as is enjoyed by white citizens…” How odd, that if all citizens, even gay ones, can make and enforce marriage contracts, that same-sex marriage is somehow not also a contract, or not made and enforced by citizens (even “minority” citizens, as he explains), and therefore a “judicial concoction.”
“There is no other source of law that can be invoked to salvage their existence,” the brief explains.
In closing, the brief encourages the Court to deal a blow to “homosexual behavior” and marriage equality next. “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.” Since two justices, Clarence Thomas and Samuel Alito, have already clearly stated their desire to overturn Obergefell and all but invited such challenges to come before the conservative-tilted Court, it’s imperative that the gay community and every American who identifies as an ally (or who merely values the separation of Church and State) take the threat seriously. Perhaps your marriage isn’t on the chopping block, but our homegrown religious zealots are unlikely to stop there.
Related: Griswold and Barrett in Your Bedroom