What the Briefs in Jackson Women’s Health (Don’t) Say about Same-Sex Marriage
Eugene’s re-posting of Professor Stephen Gilles’ argument about Obergefell v. Hodges in the Mississippi abortion case this Term prompted me to take a quick look at what the other briefs in Dobbs v. Jackson Women’s Health are saying (and mostly not saying) about the landmark same-sex marriage decision.
There were 81 briefs on the petitioners’ side (supporting Mississippi) filed in late July. Many of them unabashedly compare Roe and Casey to decisions like Dred Scott and Lochner v. New York as examples of constitutionally unsound results that caused harm and injustice.
By my count, only 11 of the 81 briefs even cite Obergefell. Of those 11, eight simply refer to a dissent in Obergefell, most commonly the one from Chief Justice Roberts, for the proposition that judges should be careful about declaring unenumerated rights lest they circumscribe too many democratic choices. But the briefs do not directly criticize the outcome or otherwise critique the reasoning of Obergefell. (Of course, I do not mean to suggest that the amicus brief authors support same-sex marriage. Many are among the most prominent opponents of it as a matter of policy and constitutional law.)
Of the three briefs that deal with the substance of Obergefell, two can be classified as relatively favorable. One is the brief from Professor Gilles. He writes:
Roe and Casey were not rightly decided under the ‘reasoned judgment’ approach as described and applied in Obergefell. The right to elective abortion was adopted and reaffirmed on the basis of specious arguments, question-begging assumptions, and inconsistent reasoning, not reasoned judgment. (p. 7)
In Gilles’ view, Roe and Casey misrepresented Anglo-American history and traditions related to abortion and failed to engage the applicable precedents with “principled consistency.” The implication
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