“Dude, I promise we won’t get between you and Fang Fang,” said Alex Griswold in response to this:
The Republicans won’t stop with banning abortion. They want to ban interracial marriage. Do you want to save that? Well, then you should probably vote. https://t.co/MRytdsjUBP
— Rep. Eric Swalwell (@RepSwalwell) May 3, 2022
Republicans will not be banning interracial marriage. For one thing:
Various prominent members of the party, from Mitch McConnell to Clarence Thomas to Jeb Bush to J.D. Vance, to name just a few, are married to women of a different race. Frankly, it’s weird on a day when the left is supposed to be in a nuclear uproar about the imminent end of abortion rights that Swalwell feels the impulse to steer the conversation in a different direction. Is he afraid that ending Roe won’t upset as many voters as Democrats hope?
Or is he just unable to suppress the progressive instinct to make all politics about race?
His dumb trollish tweet accidentally raises an interesting question, though. Per the logic of Alito’s draft opinion, is marriage a right protected by the Constitution? Lay aside the fact that no state would move to ban interracial marriages even if they had the power. Do they have the power constitutionally, per Alito?
After all, like abortion, marriage isn’t mentioned in the Constitution.
Even so, I do think he and the rest of the Court would uphold SCOTUS precedent finding marriage to be a “fundamental right” that’s beyond the power of the state to limit. The key phrase in his draft opinion is “deeply rooted.” When interpreting vague language like the right of “liberty” in the Due Process Clause, the Court is supposed to consider whether particular forms of liberty are “deeply rooted” in the nation’s culture and traditions. In one notable passage, Alito argues that the precedents on which Roe relies are so disparate that ultimately they add up to a gassy right of general “autonomy” that could be used to justify virtually any behavior, essentially a constitutional endorsement to “follow your bliss.” Only specific types of liberty that are “deeply rooted” in America’s history should be recognized as fundamental, he says:
There was no traditional right to abortion in American history before Roe, he goes on to say, which means it falls short of the “deeply rooted” threshold. By comparison, the right to marry is so deeply rooted that it’s not just a right, it’s a darned cultural expectation. Even by Alito’s logic, then, marriage should be considered fundamental and beyond the power of the state to curtail. As such, a state that attempted to discriminate by limiting access to that right, such as by preventing marriage between whites and blacks, would violate the Equal Protection Clause. That’s the holding in the famous case of Loving v. Virginia.
So no bans on interracial marriage, even under the more restrictive “deeply rooted” view of unenumerated rights in Alito’s opinion.
But that raises another question. What about the right of gays to marry under the Obergefell decision? Some liberals read the passage above and came away thinking that Alito meant to imply that the right at stake in Obergefell, which he cites as one of the precedents supporting a general right to “autonomy,” isn’t deeply rooted in American history — a hint that gay marriage could be next on the chopping block. That’s not how I read the passage. The rights that aren’t deeply rooted are “illicit drug use, prostitution, and the like.” The point he’s making is that the cases on which Roe supporters rely to support a broad right of bodily autonomy — of which Obergefell is one — are so far afield from each other that the right derived from them would cover virtually any behavior. The point of the “deeply rooted” framework is to create a limiting principle to distinguish which types of liberty are constitutionally protected and which aren’t.
The right to marry a person of the opposite sex surely is “deeply rooted.” But the right to marry a person of the same sex isn’t — if that’s how you define the right at stake in Obergefell. Some define it as the right to marry another person, plain and simple, in which case gays marrying each other is simply one permutation of that “deeply rooted” fundamental right. Some are worried, though:
Yes, Obergefell is in danger if this draft is the final decision. All of substantive due process is in danger, with maybe a carve-out for Loving and race cases. https://t.co/QivlVziMys
— Gabriel Malor (@gabrielmalor) May 3, 2022
I have no doubt that Alito believes Obergefell was decided the wrong way. He dissented from the opinion of the Court in that case, after all. I do, however, have major doubts that he could find another four votes to overrule it now that thousands of gay men and women have married and started families since the decision was handed down. There are significant reliance interests there; even if the Court returned the power to the states to ban gay marriage, I assume red states would create an exemption for existing marriages so as not to throw gay families’ legal obligations into chaos.
But that’s assuming that the Court would want to revisit Obergefell any time soon, which I suspect it wouldn’t. In fact, the very next paragraph of Alito’s opinion after the passage reproduced above is this one:
You can see how keen he is at the end to say that just because there’s no constitutional right to abortion doesn’t mean that the rights at stake in the cases on which Roe’s defenders rely are also suspect. That seems like a concession to one or more of the other members of the majority here — Gorsuch, Kavanaugh, and/or Barrett, most likely. Abortion is a matter life and death so abortion is different. Something that isn’t life-and-death, like the right of gays to marry, might receive a more generous analysis under the “deeply rooted” standard.
I’ll leave you with the clip below, which is right in line with Swalwell’s bad-faith freakout today. Exit question: If I’m right that Alito would uphold the right of couples of different races to marry as part of a fundamental marriage right that’s “deeply rooted” but would overrule the right of gay couples to marry because that one isn’t “deeply rooted,” what do we do with the fact that it was highly taboo, and often illegal, for people of different races to marry each other for most of American history? That should mean interracial marriage also isn’t “deeply rooted,” no? And if the answer to that is “marriage is fundamentally about procreation, something that straight couples of different races are capable of but gay couples aren’t,” haven’t we just added a new component to the “deeply rooted” framework?
Behar then claims the conservative justices will go after Brown v. Board and take away the right to vote.
“I see fascism down the line here,” she insisted. pic.twitter.com/GqO9rZuSsQ
— Nicholas Fondacaro (@NickFondacaro) May 3, 2022