In January 2006, Charles Fried was asked to testify before the US Senate as to whether his former colleague, Judge Samuel Alito, would revoke the right to abortion if appointed to the Supreme Court.
As Attorney General of the United States in 1989, Fried argued on behalf of President Ronald Reagan that Rowe v. Wade, the landmark 1973 Supreme Court case that guaranteed Americans the right to terminate their pregnancies, was wrongly decided and must be repealed.
Since then, however, new case law has placed the right to abortion on a much firmer footing, prompting Freud to change his position. He told senators that Alito had remained “mainstream” as a judge, albeit “on the right bank of the mainstream”, and that while he could be wrong, he believed the new Supreme Court judge would respect the precedent and allow Rowe. stand.
“Well, my face is red at that,” Fried told The Independent.
Judge Alito was shocked last month when his draft decision to overturn Rowe and Wade expired at Politico. Commenting on a Mississippi law that restricts abortion in a case known as Dobbs v. Jackson, he wrote that “Roo was extremely wrong from the start” and that the right to abortion is not “deeply rooted.” in America history.
Such a decision would set a nearly 50-year precedent and allow Republican governments to effectively ban abortions in much of the United States, restricting the rights of tens of millions of women. Yet legal scholars and pioneers of civil rights argue that Alito’s arguments could also allow the Supreme Court to overturn fundamental LGBT + rights such as the right to gay marriage, the right of gay spouses to state aid and recognition, and even the right to gay sex.
“I’m terrified, and people should be terrified,” said Jim Obergefel, whose lawsuit against Ohio led to the Supreme Court’s ruling that gay marriage is protected by the U.S. Constitution.
“This is a signal for people who are against equality in marriage, who are against LGBT + equality, who are against progress, by giving them real words that they can use in action to challenge something. And this is a signal to state and federal judges that if you come across cases using this argument, the Supreme Court may be on your side. “
Abortion rights demonstrators hold letters writing “My Choice” on Saturday, May 14, 2022, before the Supreme Court in Washington. (AP Photo / Jacqueline Martin)
(Copyright 2022 Associated Press. All rights reserved.)
Conservative government with radical ambitions
When the Supreme Court voted 7-2 in favor of Jane Rowe in 1973, they did so on the basis of one of the most contested clauses in the U.S. Constitution added after the Civil War.
The 14th Amendment, which was ratified only by rebel states under military occupation and the threat of expulsion from Congress, declared that “no state can deprive a person of life, liberty, or property without due process of law.” “.
In the 20th century, the Supreme Court began interpreting this clause as giving Americans “unlisted” rights not explicitly mentioned in the Constitution, including the right to privacy and to be free from government interference in major body elections – such as abortion.
Rowe v. Wade was controversial at the time, with even some liberal scholars accusing the court of misrepresentation. But when the court reviewed abortion rights in 1992, in the Planned Parenthood v. Casey case, he upheld Roe in part, citing a legal principle known as stare decisis (Latin for “advocacy”), which requires judges to oppose the annulment of previous decisions. unless they were seriously mistaken.
Alito’s draft opinion in Dobbs v Jackson messes it all up. Referring to previous decisions that unlisted rights based on the “due process” clause should be “deeply rooted in the history and tradition of this nation” and “implicit in the concept of orderly freedom”, he argued that in the US legislation has “zero” support for the universal right to abortion and that Rowe “is in conflict with the Constitution from the day the decision was made”.
Supreme Court Justice Samuel Alito
(AP)
Alito then goes further, listing a number of other cases resolved in part by the due process clause, including Skinner v. Oklahoma in 1942 (which states that Americans cannot be sterilized without their consent), Griswold v. Connecticut in 1965 (which recognizes the right to contraception) and Loving v Virginia in 1967 (which prohibits racial restrictions on marriage).
He also lists Lawrence v. Texas in 2003 (which repealed anti-sodomy laws), the United States v. Windsor in 2013 (which forced the federal government to treat same-sex marriage as direct marriage), and Obergefel v. Hodges in 2015 (which establish the right to gay marriage).
Alito concludes that none of these rights “claims to be deeply rooted in history.” In other words, they could be as unconstitutional as Rowe and Casey in Alito’s eyes – and any other justice that agrees with him.
In fact, the existence of the opinion suggests that four other judges have already voted to overturn Roe, reflecting the court’s powerful new conservative majority. Six of the nine judges are appointed by Republican presidents and are current or former members of the Conservative Federalist Society; three were appointed by Donald Trump.
This is a historic triumph for the Republican Party, which blocked Merrick Garland’s nomination for a vacancy in the Supreme Court in the last nine months of Barack Obama’s presidency, only to break through President Trump’s conservative election just 38 days before the 2020 election.
At risk: gay marriage, gay sex and transgender medical care
For Fried, now a professor at Harvard Law School, Alito’s arguments remind him of a joke from his opponent when he argued against Rowe on behalf of President Reagan in 1989.
Explaining his case, Fried told the court that he did not oppose the whole structure of innumerable rights, such as the right to contraception; he just wanted to pull a thread. His opponent replied that if you pulled a thread on a wool sweater, the sleeve would fall off.
“What Alito’s draft does, of course, causes the sleeve to fall off,” Fried said. “Rowe’s opinion was very vulnerable, but Casey was on a very solid constitutional basis because it speaks to the dignity of women and the importance of being able to choose their own life plan … the case of gay sex, the case of gay marriage, all of them are arguments of this kind … it would cause chaos. “
He added that the opinions of the majority in Casey, Lawrence and Obergefel were written or co-authored by retired Judge Anthony Kennedy, who was appointed by Reagan in 1988, thus linking their legal arguments together.
Jim Obergefel spoke at the national LGBT 50th anniversary ceremony on July 4, 2015, in front of Independence Hall in Philadelphia.
(Copyright 2022 Associated Press. All rights reserved.)
Jim Obergefel himself first heard of Alito’s leak as he read in bed, and immediately felt “sick of it.” [his] In addition to striking at women’s rights, he saw his widespread language as a “clear appeal” to conservative activists and Republican governments to challenge legal rights against LGBT rights and an arsenal of arguments they can use to do so.
He points out that with the right to marry come many other rights: inherit your spouse’s property without paying tax on it, visit your spouse when he is in hospital, be registered with your spouse in the birth certificate of your children, access to tax relief for married couples, to have access to a plot of land in a family cemetery and to be entitled to family leave from work.
“Alito’s reasoning puts all these rights at risk,” agreed Erwin Chemerinski, a veteran constitutional scholar and dean of the Berkeley School of Law who testified against Alito’s nomination, accusing him of “dangerous” respect for the executive branch.
“Protecting the rights of gays and lesbians is not responsible [Alito’s] criteria … the current court will decide these cases differently and is not interested in following the precedent. “
A new Gallup poll shows that support for gay marriage has risen to a new high of 71 percent.
Paul M. Smith, a lawyer who led the successful Lawrence Sodom Challenge Act in Texas and is now a senior vice president at the campaign’s Legal Center, also told The Independent that Alito’s reasoning would apply to the case. And Roberta Kaplan, who lifted the federal boycott of gay marriages in Windsor, told Grid News that gay couples should get married now – if you’re ready, of course.
The decision could also jeopardize the progressive challenges against the wave of anti-transgender bills currently covering the red states, which seek to ban gender-sensitive medical treatments for trans people under 18 or ban them from playing sports at school. They also include the fundamental right to determine what happens to a person’s body.
Supreme Court members pose for a group photo at the Supreme Court in Washington, D.C., April 23, 2021. On the left sit Associate Judge Samuel Alito, Associate Judge Clarence Thomas, Chief Justice John Roberts, Associate Judge Stephen Breyer and Associate Judge Sonia Sotolia. Judge Brett Cavanaugh, Associate Judge Elena Kagan, Associate Judge Neil Gorsuch and Associate Judge Amy Connie Barrett.
(Supreme Court)
When a federal judge last month blocked Alabama’s Compassionate and Protecting Vulnerable Children Act, which bans blockers on puberty and hormone therapy for trans minors, he did so in part on the 14th Amendment due process clause. “Parent plaintiffs have a fundamental right to manage the medical care of their children.”
In fact, Fried fears that the impact may go beyond LGBT rights. He quotes Moore v …
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