Kim Davis & Co. just told us again they want to ban gay marriage, birth control. Let’s believe them | Opinion
Like many of you, I never dreamed the U.S. Supreme Court would actually overturn Roe v. Wade, a case from 1973 that was “settled law” or a legal precedent that had been reaffirmed numerous times. At least that’s how Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch described it in their confirmation hearings.
But that was dumb and naive.
Conservatives have told us over and over again their long game for every part of our society, and getting rid of Roe v. Wade was at the top of their wish list. They made a plan and executed it, keeping people informed every step of the way.
They are still telling us what they want to do, and this time it would be good to listen.
The latest volley is a recent appeal of case of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same sex partners after the Supreme Court legalized gay marriage in the Obergefell v. Hodges case in 2015.
As Herald-Leader reporter Alex Acquisto explained, this particular appeal probably won’t get too far because the appeal is over how much Davis should pay in damages, not whether her rights were infringed upon.
But Liberty Counsel, which described itself as a litigation ministry with a “worldview that is historically Christian and biblical,” said in a news release that the real goal of the case was to overturn Obergefell.
Deep in the brief, the Liberty lawyers argue that after the court overturned Roe v. Wade, the justices should continue down the same road of reasoning and overturn Griswold, Lawrence and Obergefell.
Just to remind you, Griswold v. Connecticut legalized access to birth control in 1965, Lawrence v. Texas legalized same-sex relations in 2003 and Obergefell v. Hodges legalized gay marriage in 2015.
These cases were decided using the argument of substantive due process in the Fourteenth Amendment that covered privacy, and therefore ensured rights to things not explicitly named in the Constitution— such as marriage, sex and birth control.
The Dobbs decision, however, said substantive due process rights had been over-applied, and things like a right to abortion, may be found “only when they are deeply rooted in the nation’s history and tradition.”
The Liberty Counsel brief basically quotes Justice Thomas from Dobbs in saying because “any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents.”
“I think they’re signaling to the base to get attention to signal to their fellow travelers — we’re fighting the good fight,” said Joe Dunman, one of the plaintiffs lawyers in Obergefell who teaches at the University of Louisville Law School.
Roe, Griswold, Lawrence and Obergefell are in a family of cases, Dunman said, that gave autonomy to people outside of “straight, white, male autonomy.”
“These cases expanded the concept of liberty to people who are not like me, and conservatives really hate it, they think it’s a complete corruption of the Constitution,” he said.
Like Dobbs, challenges to any one of these cases could make their way to the US Supreme Court at any time. In fact, Project 2025, the governing blueprint prepared by former Donald Trump employees at the Heritage Foundation, have a whole section that calls on states to enforce the Comstock Act, which Griswold effectively nullified.
Enforcing the Comstock Act, which still exists as a “zombie law” in many states, which forbids abortion medication from going through the mail. Then birth control would be an easy next step.
But Dunman sees an even scarier future, in which conservatives use the same logic to go after Brown v. Board of Education, the 1955 landmark case that found separate schools were unequal and therefore violated 14th Amendment’s Equal Protection Clause, thereby overthrowing Jim Crow laws throughout the South.
You can’t look at the court’s assaults on voting rights protections or affirmative action “without seeing hints they think Brown was wrong,” Dunman said. “If your world view is that we are in a color blind society, I don’t see any reason why Brown wouldn’t get overruled under that approach.”
A bridge too far, right?
Brown is one of the most important decisions ever reached by the Supreme Court, a judicial mandate that held segregation was the wrong answer to this country’s original sin of slavery. It is foundational to our society. But it’s also vulnerable to people who hate the way this country has evolved to value something besides white male power.
There’s plenty of clear choices of what can be done to stop these assaults, and most of them will happen in the voting booth.
I haven’t taken this kind of extremism seriously enough.
I didn’t believe Roe would be overturned.
I didn’t think Trump would actually foment a coup.
I’ve been naive and I’ve been wrong.
But I’m not going to be surprised again.
What about you?
This story was originally published July 30, 2024 at 4:00 AM.
