It appears that, for some people, not a lot has changed with that position of America .
recently the editors of the New York Times seriously warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned : “ Imagine that every state were loose to choose whether to allow Black people and white people to marry. Some states would permit such marriages ; others probably wouldn ’ thyroxine. ”
It is arduous to imagine because it is absolutely false. nothing in the Supreme Court ’ s leaked draft opinion in Dobbs v. Jackson Women ’ s Health Organization supports such a awful prediction. To the contrary, the draft expressly states that “ nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. ” indeed, such a motif might come as something of a surprise to Justice Clarence Thomas, given his own interracial marriage, or to Justice Amy Coney Barrett, given her own interracial kin.
The aim of the Times ’ comment seems to be to inflame quite than inform readers. And that is coherent with the position of politicians and pundits who raised alarms, even before the leak, over the want to reignite anger among voters to avoid a catastrophe in the midterm examination election. On MSNBC, for case, Rep. Madeleine Dean ( D-Pa. ) agreed with John Heilemann that Democrats must “ scare the crap out of [ voters ] and get them to come out. ”
The Times editorial is part of a “ parade of horribles ” that is becoming increasingly grotesque in its exaggerated claims. MSNBC ’ s Andrea Mitchell and former Clinton Attorney General Eric Holder had a absurd discussion of how if Roe goes down, Brown v. Board of Education could be adjacent. MSNBC ’ s “ The ReidOut ” host Joy Reid falsely told her audience that the decision “ could apply to about anything ” in not fair prohibiting interracial marriage but overturning the Brown decision .
An apocalyptic post-Roe hellscape can be a motivate trope, but lone to the extent that it is credible. The trouble is that the claims are detached from both legal and political realities. Consider three of these claims on interracial marriage, contraception and same-sex marriage :
With polls showing that 94 percentage of Americans support interracial marriage, the Times editors do not bother to name the states that are largely composed of the remaining 6 percentage .
The call is even less credible legally than it is politically. The leading case on interracial marriage, Loving v. Virginia, was based on different constitutional grounds and would not be negated by this public opinion. While the court did discuss the due process right to marriage, it was chiefly handed down on equal auspices grounds due to the built-in racial classification. Then-Chief Justice Earl Warren wrote : “ The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of discriminatory racial discrimination in the States … There can be no doubt that restricting the exemption to marry entirely because of racial classifications violates the cardinal meaning of the Equal Protection Clause. ”
none of that, however, deters some pundits from keeping alive the fear that interracial marriages soon could be criminalized. As ABC ’ s late-night host Jimmy Kimmel declared, “ They ’ ll come for same-sex marriage, they ’ ll come for interracial marriage, they ’ ll lawless that peanut butter that comes with the jelly in the same jar. ”
It might be a good comedic line — but this and similar claims make no constitutional common sense. There is no rationality to believe that interracial marriages would be banned in a post-Roe world .
The cries of alarm include other areas expressly addressed in the draft public opinion as not impacted by its psychoanalysis. For model, many critics claim that contraception could soon be outlawed tied though the court ’ sulfur draft specifically dismisses such claims : “ Roe ’ s defenders characterize the abortion right as like to the rights recognized in past decisions involving matters such as familiar sexual relations, contraception, and marriage, but abortion is basically different, as both Roe and Casey acknowledged. ”
It is true that some activists have sought to outlaw IUDs and Plan B prescriptions as “ abortion-inducing. ” however, putting aside that the draft public opinion expressly distinguishes the contraception cases, there is no basis for suggesting that the court would eradicate any illusion of personal privacy and closeness protections under the Constitution. such sweeping transformation of the private lives of Americans would involve curtailing a host of other rights, including equal protection. furthermore, there would be considerable practical barriers to such bans in preventing interstate handiness of contraceptives .
The poll on this offspring is even more lopsided. While the public remains supportive of limits on abortion, some 83 percentage digest to the handiness of contraceptives. only 6 percentage party favor making contraception illegal .
In 2015, the court voted 5-4 to strike down bans on same-sex marriage. The court ’ randomness particular foundation for this right has continued to be mired in controversy. even some of us who had long supported same-sex marriage raised concerns at the time over the reliance of Justice Anthony Kennedy in his decision on a “ correct to dignity. ”
once again, however, the court in this draft public opinion distinguishes miscarriage from other areas as involving claims of an “ unborn human life. ” nothing in this opinion endorses a prohibition on same-sex unions .
however, even before this enlist opinion was leaked, there were calls for a better-articulated foundation than the one lay out in Obergefell v. Hodges. As with interracial marriage, many of us have argued for an equal-protection initiation for the right .
Putting this aside, the politics on this issue has changed dramatically in the last ten. Polls show that 70 percentage of Americans support same-sex marriage .
Roe is not the basis for all of these rights, and its basis has hanker been debated. Nevertheless, columnist Maureen Dowd has declared that the “ antediluvian draft opinion is the Puritans ’ greatest victory since they expelled Roger Williams from the Massachusetts Bay Colony. ”
such claims, however, ignore that the footing for the original decision was questioned even by liberals. Harvard Law Professor Laurence Tribe wrote that “ one of the most curious things about Roe is that, behind its own verbal smoke screen, the substantial judgment on which it rests is nowhere to be found. ” At least some of the court ’ sulfur justices intelligibly hold many of the same doubts over the basis for Roe in the Constitution .
There is ample cause for pro-abortion advocates to organize over the loss of Roe. however, those claims are only undermined by a parade of horribles that leaves both the case police and credibility behind.
A cynic might wonder if democratic leaders in Congress rightfully want to preserve the condition quo of Roe. After all, their recent proposed codification of Roe went beyond the draft decision, which the leadership knew would lose critical votes in the Senate — but which may provide what they hope will be a herculean rally cry for the midterm elections .
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @ JonathanTurley .