I mean, woo equality and all. Marriage equality is a fundamental civil right, IMO, although I think that the Griswold framing of substantive rights as all being derived from privacy is INSANE, both politically and legally.1
But here’s the thing… whether it’s codifying Roe, codifying Obergefell, or Griswold, or whatever… Congress barely has the power to pass these acts! Contraception, OK, maybe that can pass under the Commerce Clause.
But Obergefell and Roe? Sure, Congress can pass laws trying to protect them based on 14A-SDP, just like it has the Civil Rights Act and Title IX, but those laws will ultimately go before SCOTUS.
I’ll cheer these on from the sidelines. I’ll hope and pray that SCOTUS approves them under the legal theories I support, or something similar. But let’s not be under any illusions that these laws will be the last words on this particular bundle of civil rights.
I believe that the 1st, 3rd, 4th, and 5th amendments strongly imply a right to privacy, and that under 14A’s Substantive Due Process, SCOTUS should be able to easily find a general right to privacy. This right should protect things like your private information, intimate moments, right against government snooping, etc.
That said, Griswold is wrong: The right to privacy doesn’t guarantee the fundamental right to any old act one might commit behind the veil of privacy. There’s no right to murder people “behind closed doors”; there’s no right to do cocaine “behind closed doors”. Griswold should be more narrowly interpreted that the sexual act itself is inherently and intimately private, thus prohibiting direct state regulation of sexual acts (this is essentially Lawrence), but also that Congress is ultimately free to regulate contraception under the Commerce Clause, and the states thus can’t interfere with contraceptive availability.
Accordingly, Obergefell shouldn’t rest on Griswold, it should be derived from 14A-SDP’s interpretation of gender equality. After all, there’s nothing private about a damned marriage! And the legal theory that men and women should be equally free to enter a marriage contract with other men and women is fundamentally sound and broadly accepted. We shouldn’t be overcomplicating this and hamstringing ourselves by insisting on Obergefell’s narrow validity under Griswold; we should be making the broader claim that Obergefell stands on its own… because it quite obviously does.
More broadly… it’s really dumb for liberals to keep hinging all of our legal theories on Griswold, as if the right set of magic incantations will protect us from the onslaught of reactionary populism. Guess what? The majority of Americans support the “Griswold bundle” of rights! We’re not fighting an underdog battle anymore here. We need to stop adhering to tired legal fictions and advance a substantive theory of rights that don’t hinge on a blatant fallacy about “privacy”. We need to trust that we can win elections campaigning to protect these basic rights.
My point about "public support" was that we've been treating SCOTUS like a 3rd-grader getting bullied treats the teacher/principal: someone to go tattle to and beg to protect you.
But the thing is, we're not 3rd-graders anymore! We're in high school. The principal isn't there to coddle us anymore; in fact, the school board got hijacked by Trumpers and fired her to install some new asshole who doesn't give a shit about us. And yet, we're also not helpless anymore. Most of the community is on our side! Instead of wailing like we're still these unpopular underdogs, we need to stand tall and rally the community.
ERA would do it too, but your options there are either (A) pass an ERA-copy act in Congress, or (B) make a push to finish the ERA Article 5 process to make it an amendment.
1) Because it's a state politics issue, and the Dems' national leadership is SHIT at state politics. They avoid anything that remotely resembles a state-level political strategy like it's the plague.
2) Because it's a hard lift. There are several federal cases making their way through appeals courts, which means SCOTUS probably won't act on it any time soon. Congress would probably have to reauthorize or reboot ERA, but it'd be impossible to motivate enough Congresspeople to vote for that without any incipient disaster brought on by SCOTUS ruling against resurrecting ERA. And because of all that legal limbo, it's impossible to get people excited all over again about it as a national effort.
So rewrite the ERA from scratch. I think enough people would get behind right protections for everyone that it could sail through congress. I mean if we can get a third of house republicans to vote for codifying marriage equality then the ERA should be easy (insert sarcasm here).
There's no law of the universe that says progress should be easy. In fact, the raw zero-sum nature of reality IMO means that progress is almost always an uphill battle.
I'd love to pass ERA; I think the right's old concerns about what it would be used to justify (IE to give a firmer constitutional grounding to abortion etc) are moot now that they control SCOTUS. They don't have much to worry about.
But try convincing THEM of that, amirite?! You gotta hand it to them for always sticking to their guns no matter how absurd or remote of a tail-risk some reform is.
So I may have missed it….but you didn’t mention equal protection clause? Also what about passing the ERA? Wouldn’t that really codify marriage?
And you can’t use public support as a rationale for passing legislation, the republicans don’t and it seemed to work fine for them.
My point about "public support" was that we've been treating SCOTUS like a 3rd-grader getting bullied treats the teacher/principal: someone to go tattle to and beg to protect you.
But the thing is, we're not 3rd-graders anymore! We're in high school. The principal isn't there to coddle us anymore; in fact, the school board got hijacked by Trumpers and fired her to install some new asshole who doesn't give a shit about us. And yet, we're also not helpless anymore. Most of the community is on our side! Instead of wailing like we're still these unpopular underdogs, we need to stand tall and rally the community.
SDP is derived from the EPC.
ERA would do it too, but your options there are either (A) pass an ERA-copy act in Congress, or (B) make a push to finish the ERA Article 5 process to make it an amendment.
Why do you think the ERA hasn’t been brought up? Are we past the protections it specifies? Would it not do enough to include queer folks?
1) Because it's a state politics issue, and the Dems' national leadership is SHIT at state politics. They avoid anything that remotely resembles a state-level political strategy like it's the plague.
2) Because it's a hard lift. There are several federal cases making their way through appeals courts, which means SCOTUS probably won't act on it any time soon. Congress would probably have to reauthorize or reboot ERA, but it'd be impossible to motivate enough Congresspeople to vote for that without any incipient disaster brought on by SCOTUS ruling against resurrecting ERA. And because of all that legal limbo, it's impossible to get people excited all over again about it as a national effort.
So rewrite the ERA from scratch. I think enough people would get behind right protections for everyone that it could sail through congress. I mean if we can get a third of house republicans to vote for codifying marriage equality then the ERA should be easy (insert sarcasm here).
There's no law of the universe that says progress should be easy. In fact, the raw zero-sum nature of reality IMO means that progress is almost always an uphill battle.
I'd love to pass ERA; I think the right's old concerns about what it would be used to justify (IE to give a firmer constitutional grounding to abortion etc) are moot now that they control SCOTUS. They don't have much to worry about.
But try convincing THEM of that, amirite?! You gotta hand it to them for always sticking to their guns no matter how absurd or remote of a tail-risk some reform is.