Contraception has virtually universal approval among Americans and support for gay marriage is trending north of 70 percent at last check. Unless the Court is prepared to revert to “separate but equal” - blacks are equal in that they’re free to marry other blacks - then nothing’s going to happen to that right.Īnd if we ever do reach the point where gay rights and the right to contraception are in play at the Court, Republican legislators at the state level will proceed with extreme caution in trying to regulate them. It’s an interpretation of the Equal Protection Clause. In particular, the right to interracial marriage is in no near-term danger because it doesn’t depend (for the most part) on substantive due process. If I’m right about that then the Court’s other major “substantive due process” precedents are in no danger soon. It may be that Kavanaugh or Barrett or whoever told him that they’re onboard for overturning Roe but only Roe and that he needed to go along with that in order to retain their vote. That passage reeks of a justification Alito was forced to come up with in order to hold his majority together. If the legal defect with Roe is that the right to abortion isn’t in the Constitution and wasn’t recognized at the Founding, what does it matter that abortion touches on life and death while, say, gay marriage doesn’t? It’s a non sequitur. His reasoning is unconvincing, admittedly.
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