Am I Crazy, Or Is Congress Overstepping Its Bounds?

https://www.cnn.com/2022/07/20/politics/gop-senators-same-sex-marriage/index.html

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.

1

To elaborate:

  1. 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.

  2. 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.

  3. 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.