An article in today’s Wall Street Journal is really burning my biscuits. The author, Robert George, claims that if the Supreme Court decides to hear an appeal of California’s Proposition 8 (which outlawed same sex marriage), the justices would be “repeating the mistakes of Roe.”
It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.
Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.
By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.
First of all, Roe was not a mistake. Although the justices at the time could have done more to shore up women’s equality by deciding the case under the 14th Amendment’s equal protection clause, rather than on the grounds of privacy, the wording of the original decision is still sound. If any SCOTUS decision can be faulted it’s Planned Parenthood v. Casey, which set up the “undue burden” standard. Since 1992, we have seen a vicious attack on women’s rights, as anti-choicers keep sponsoring legislation that pushes the limits of the “undue burden” standard further and further. Abortion may still be technically legal in the United States, but the legislative restrictions that have been placed on access to abortion make it inaccessible for most women – 87% of US counties have no abortion provider. In her Feminists For Choice interview last week, Gloria Feldt argued that pro-choice advocates need to be articulating their demands from a human rights platform, rather than on the grounds of privacy. I think that this paradigm shift would overcome any of the shortcomings of Roe because it would allow us to have recourse beyond SCOTUS.
Secondly, I seriously doubt that the attorneys in the Prop 8 appeal are going to be arguing that same sex marriage is a matter of privacy. Granted, the Lawrence v. Texas case, which overturned sodomy statues, relied on Griswold v. Connecticut for legal precedent. Griswold was the 1965 case that set the groundwork for Roe. The justices found that a married couple had a right to receive contraceptives because it was covered under the right to privacy. Although Griswold is an important legal precedent, my bet is that the Prop 8 case will ultimately be decided on the justices’ interpretation of the 14th Amendment’s equal protection clause. The Supreme Court will have to decide if gays and lesbians are entitled to equal protection under the law. This is not a “moral issue,” as those who oppose same sex marriage claim. If the government grants legal protections to heterosexuals to marry, then it must provide the same protections and benefits to gay and lesbian couples under the 14th Amendment. If the Supreme Court rules otherwise, then we will truly see what the Court believes about the LGBTQ community and our rights.
I do think that an appeal of Prop 8 to the SCOTUS is a mistake, but not for the same reasons that George gives in the Wall Street Journal. I think that the state by state strategy is actually working. I mean, hell – even voters in Iowa approved marriage equality this year. I don’t think that the current make up of SCOTUS is going to pan out in favor of the LGBTQ community on the question of marriage equality. It’s far too conservative, and if they decide that Prop 8 is not unconstitutional on 14th Amendment grounds, you can kiss everything else, like employment protections and hate crimes statutes, goodbye. It’s too risky. We could actually get an inclusive ENDA passed this year. But if a Prop 8 decision comes down in favor of the fundies, ENDA will be a wash.
That’s just my opinion, though. What do you think? Was Roe a mistake? And is it a mistake to appeal Prop 8 to the Supreme Court?