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> And all it takes is one state to pass one and they're in the same situation as the gays. Their reasoning isn't all that distinct, Row, Loving, and Obergefell

> And all it takes is one state to pass one and they're in the same situation as the gays. Their reasoning isn't all that distinct, Row, Loving, and Obergefell are all based on the constitutional protection that is now gone. If such a law was passed it would be upheld as constitutional. And Thomas knows this which is why in the opinion he invented some flimsy reasoning as to why interracial marriage has some deeper history in the US than gays being life partners. When the 14th Amendment was being proposed and ratified, there was a lot of debate about whether it entailed a constitutional right to interracial marriage. Its opponents argued that it did, and – since they believed that interracial marriage was a bad thing that ought to be illegal – they therefore argued the Amendment should be rejected. Most of its supporters agreed with its opponents that interracial marriage was a bad thing that ought to be illegal; but they disagreed that the text of the 14th Amendment entailed any constitutional right to it. (There were likely some 14th Amendment supporters who did believe that it implied a constitutional right to interracial marriage–but they were smart enough to keep their mouths shut, they didn't want to hurt its chances.) So, Loving v Virginia would not have been that surprising to people alive at the time of Amendment's adoption, because it was simply a consequence predicted by some at the time eventually coming to pass. But I don't think anyone in 1866–1868 could have foreseen Roe or Obergefell. Therefore, it is arguable that Loving possesses a textual-historical plausibility (it is what some people thought the text meant at the time of its adoption) which Roe and Obergefell lack (nobody at the time of the text's adoption would have ever thought it meant either.) So, if someone has a judicial philosophy which puts a great deal of emphasis on how the text was understood at the time of its adoption, they do have a rational basis for distinguishing Loving from Roe and Obergefell.

Spivak 3y ago
You basically outlined Thomas's reasoning and I still think it's flimsy as hell. Were the 14th amendment proposed today people would be arguing that equal protection implied marriage equality. And honestly probably trans rights, and biased policing, and voting access, and gerrymandering. Saying that the 14th amendment only gives you the rights people thought of at the time is like saying the 2nd amendment only guarantees you muskets or 1A doesn't apply to the internet. But marriage equality is particularly egregious because it's the same case with the same arguments for and against and if one is justified by the right to privacy of people in their own homes then so too must the other and vice versa. And worse even if you bought this line of reasoning the argument is equally strong that interracial marriage isn't protected using the same historical basis. The opinion overturning Loving would practically write itself. It's not some gotcha, if you believe that right to privacy isn't implied then all these cases should fall. It's not a bad thing, not every protection we have has to be in the constitution. But that Thomas went the extra mile to call interracial marriage as "no that one stays" is telling.
- skissane 3y ago
  > You basically outlined Thomas's reasoning and I still think it's flimsy as hell. Thomas is an originalist – he believes that, in order to determine the meaning of a legal text, we need to be guided by the historical context of its original adoption and what people alive at that time understood it to mean. So, what you are calling "flimsy as hell" here – the logical/historical argument that, starting with originalism as an axiom, deduces that Loving is distinguishable from Roe and Obergefell? Or that originalist axiom in itself? > Were the 14th amendment proposed today people would be arguing that equal protection implied marriage equality. From an originalist viewpoint, it doesn't matter what people would have argued were the 14th Amendment proposed today - what matters is what people argued at the time of its proposal. > Saying that the 14th amendment only gives you the rights people thought of at the time is like saying the 2nd amendment only guarantees you muskets or 1A doesn't apply to the internet. The authors of the 1st and 2nd Amendments understood the concept of technology improving over time – it is something they had experienced for themselves, even if at a much slower pace than today. No doubt they expected new technologies would be invented in the coming decades and centuries, and intended those Amendments to include in their scope technologies yet to be invented. That's a very different situation from trying to ground Roe or Obergefell in the text of the 14th Amendment. > But marriage equality is particularly egregious because it's the same case with the same arguments for and against There is a very fundamental difference – Loving was about race, and ensuring a bare minimum of legal equality among people of different races was the primary purpose of the 14th; Obergefell was not about race, and hence falls outside that primary purpose. Even non-originalists (traditionally) agree that the Equal Protection clause is stronger for race than (most) non-racial classifications. > It's not some gotcha, if you believe that right to privacy isn't implied then all these cases should fall Neither Loving nor Obergefell were exclusively about the right to privacy. Both cases were justified on the basis of both substantive due process (to which the right of privacy is generally thought to belong) and equal protection. Even if you reject the notion of a constitutional right to privacy, that has no direct impact on the equal protection reasoning of either case.

Spivak 3y ago

You basically outlined Thomas's reasoning and I still think it's flimsy as hell. Were the 14th amendment proposed today people would be arguing that equal protection implied marriage equality. And honestly probably trans rights, and biased policing, and voting access, and gerrymandering. Saying that the 14th amendment only gives you the rights people thought of at the time is like saying the 2nd amendment only guarantees you muskets or 1A doesn't apply to the internet. But marriage equality is particularly egregious because it's the same case with the same arguments for and against and if one is justified by the right to privacy of people in their own homes then so too must the other and vice versa. And worse even if you bought this line of reasoning the argument is equally strong that interracial marriage isn't protected using the same historical basis. The opinion overturning Loving would practically write itself. It's not some gotcha, if you believe that right to privacy isn't implied then all these cases should fall. It's not a bad thing, not every protection we have has to be in the constitution. But that Thomas went the extra mile to call interracial marriage as "no that one stays" is telling.

skissane 3y ago
> You basically outlined Thomas's reasoning and I still think it's flimsy as hell. Thomas is an originalist – he believes that, in order to determine the meaning of a legal text, we need to be guided by the historical context of its original adoption and what people alive at that time understood it to mean. So, what you are calling "flimsy as hell" here – the logical/historical argument that, starting with originalism as an axiom, deduces that Loving is distinguishable from Roe and Obergefell? Or that originalist axiom in itself? > Were the 14th amendment proposed today people would be arguing that equal protection implied marriage equality. From an originalist viewpoint, it doesn't matter what people would have argued were the 14th Amendment proposed today - what matters is what people argued at the time of its proposal. > Saying that the 14th amendment only gives you the rights people thought of at the time is like saying the 2nd amendment only guarantees you muskets or 1A doesn't apply to the internet. The authors of the 1st and 2nd Amendments understood the concept of technology improving over time – it is something they had experienced for themselves, even if at a much slower pace than today. No doubt they expected new technologies would be invented in the coming decades and centuries, and intended those Amendments to include in their scope technologies yet to be invented. That's a very different situation from trying to ground Roe or Obergefell in the text of the 14th Amendment. > But marriage equality is particularly egregious because it's the same case with the same arguments for and against There is a very fundamental difference – Loving was about race, and ensuring a bare minimum of legal equality among people of different races was the primary purpose of the 14th; Obergefell was not about race, and hence falls outside that primary purpose. Even non-originalists (traditionally) agree that the Equal Protection clause is stronger for race than (most) non-racial classifications. > It's not some gotcha, if you believe that right to privacy isn't implied then all these cases should fall Neither Loving nor Obergefell were exclusively about the right to privacy. Both cases were justified on the basis of both substantive due process (to which the right of privacy is generally thought to belong) and equal protection. Even if you reject the notion of a constitutional right to privacy, that has no direct impact on the equal protection reasoning of either case.