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Never again is what you swore the time before


I like Orin Kerr — he remains a very rare example in the wild of the almost extinct Reasonable Conservative. But I think he’s mostly wrong here for a number of reasons:

The reasons he lists are:

(1) Roe (and Casey) was always the bete noire of movement conservatism and stands alone in that respect.

(2) Legal abortion remains more controversial than gay marriage has become.

(3) The draft majority opinion in Dobbs makes a big deal of purporting to distinguish abortion from gay marriage, contraception, inter-racial marriage, etc.

In short, he sees reversing any of those latter precedents as a more radical move than over-ruling Roe, and he doesn’t think the Dobbs majority is that radical.

I think this argument may have some purchase when it comes to contraception and inter-racial marriage, though I wouldn’t want to put any money on that. Now note that if you don’t buy Alito’s to put it mildly under-theorized claim that abortion is just fundamentally different than these two issues, it would seem that every other aspect of the Dobbs opinion would apply with equal force to Griswold (contraception) and Loving (inter-racial marriage). But on these issues, Kerr’s argument about popularity has real force: criminalizing contraception and inter-racial marriage are positions that are in fact extremely fringe in American politics today, even among the herrenvolk.

Again, Alito et. al. are genuine jurisprudential and political radicals — for example I don’t doubt for a moment that Thomas and Alito would both vote to reverse Griswold and Loving if they thought they had the votes — so I wouldn’t put even this past the Furious Five. I’m just saying that Kerr’s argument has more force in this context, as I have trouble imagining Kavanaugh and Gorsuch going along with this; as for ACB it’s too early to tell, but I admit that being a member of a right wing religious cult isn’t encouraging.

But Obergefell? Here I think Kerr’s argument is clearly off base.

First, I don’t know who his right wing confreres are, but the people I know from that world hate that opinion just as much if not more than they ever hated Roe. If you’re a fundamentalist evangelical or an integralist Catholic, gay marriage is more loathsome and detestable than even abortion, as from these perspectives gay marriage strikes at the roots of traditional society far more comprehensively than legal abortion does.

Second, the very polling data Kerr cites in regard to the relative popularity of abortion rights and gay marriage is quite ambiguous in regard to which has more support. The Gallup poll he cites indicates support for legal abortion in at least some circumstances to be hovering around 80%, which is significantly higher than support for gay marriage (Of course a lot turns on what precisely “at least some circumstances” means. After all Roe only held there was a constitutional right to abortion in some but not all circumstances).

In any event, gay marriage certainly still has nothing like the overwhelming public support that legal contraception and inter-racial marriage enjoy, at least putatively (FWIW I suspect a certain amount of lying on the inter-racial marriage question, but still).

Third, Obergefell is much more vulnerable on stare decisis grounds than Roe. It’s a seven-year old opinion, decided by a 5-4 vote, as opposed to a 49-year-old holding in a 7-2 case.

Fourth, I don’t for a second believe any of Alito’s assurances, such as they are, on this score. Alito is no dummy, yet his efforts to distinguish Roe from the other privacy cases were pro forma at best — he devotes almost no space to this crucial matter in the course of a nearly 100-page opinion. Those efforts read very much like bone-tossing to calm the nerves of Kavanaugh — the most obvious squish among the five votes to over-rule Roe explicitly — in regard to something as politically explosive (and frankly insane) as reversing Griswold and Loving.

But again, Obergefell is a completely different story. I fully expect that something like this will happen:

After Dobbs is made official, some state AG — Paxton in Texas is the most obvious choice — will announce that Texas isn’t recognizing the validity of gay marriage any more, because the logic of Dobbs requires over-ruling Obergefell. I fully expect an en banc 5th Circuit will uphold this, no matter what the district court does.

Then it’s off to the Supremes, which personally I doubt are going to stop in the name of love.

In short, I think Kerr is in denial on this subject, because the reality is too much for center right types to bear, meaning the current options are denial, or a conversion experience such as the one somebody like Jennifer Rubin has undergone over the last few years.

Thus sayeth the apostle to the gentiles.

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