OBERGEFELL IS GOING TO REPLACE ROE FOR THE RIGHT

The Right is eagerly anticipating victory in their 50 year war against Roe V Wade this summer, when the 6-3 Wingnut Supreme Court rules in Dobbs v. Jackson Women’s Health Organization.

In case you have been too consumed by the war in Ukraine to remember all the other battles being fought, Dobbs is the case that nearly everyone - on both sides of the abortion debate - expects to see Roe v. Wade and Planned Parenthood v. Casey overturned. During the oral arguments in the case last fall, the conservative justices weren’t particularly coy about their intent.

With the “Roe War” won, the Right is now looking for their next culture war litmus test, that they can use to drive turnout among their base the way they did with promises that voting for the Republican presidential candidate would mean another blow against abortion.

They’re gunning for Obergefell.

As in Obergefell vs. Hodges, the 2015 5-4 decision where the Court decided that the 14th Amendment gives same-sex couples the right to marry.

The Republicans on the Senate Judiciary Committee didn’t bother to cloak their new target in vagueries or code during their questioning of Judge Ketanji Brown Jackson on Tuesday.

Senator John Cornyn (R-TX) opened his questioning with references to famously wrongly- decided precedent:

“Isn’t it apparent that when the Supreme Court decides that something that is not even in the Constitution is a fundamental right, and no state can pass any law that conflicts with the Supreme Court’s edict particularly in an area where people have sincerely held religious beliefs, doesn’t that necessarily create conflict between what people may believe is a matter of their religious doctrine or faith and what the federal government says is the law of the land?”

Jackson replied, “Well, senator, that is the nature of a right.”

Cornyn continued, calling it “judicial policy making,” that the word “marriage” does not appear in the Constitution, but that “religious freedom” is explicitly mentioned.

Sen. John Kennedy (R-LA) continued when it came his time, citing Obergefell explicitly then asking:

“Can you understand why some Americans go, ‘wait a minute. These are unenumerated rights. Are justices interpreting the Constitution or are they just deciding a right when they get five votes and it’s just a moral conviction?”

Other Republicans on the committee were more vague in their discussions of “unenumerated rights,” and what restrains the Court in creating new ones.

The Republican senators are trying on Obergefell for size to see if it can work as well as Roe did.

Many conservatives earnestly believe that same-sex marriage is an infringement on religious liberty - their version of “religious liberty” being their freedom to impose their vision of life and morality on the rest of us.

But using Obergefell this way does more work than that. Over the past 45 years, opposition to Roe became a litmus test and rallying cry for the right because it could be used as a stand-in for all their other culture war issues: religiosity, “traditional” gender and sex mores. It became a way to trigger liberal snowflakes. More than all of that, the battle to overturn Roe became a useful and effective campaign tool. The appointment of Supreme Court justices became an organizing tool to drive turnout for Republican candidates. It became a moral and electoral crusade, a goal to work towards incrementally.

Judge Jackson’s hearing was the day we saw them put up a trial balloon to gauge how both base and opponents respond.

With this 6-3 Wingnut majority, every single decision of the Supreme Court that utilized the equal protection clause of the Fourteenth Amendment as a way to impose the rights in the Constitution on the States, from Brown v. Board of Education (desegregation), to Gideon v. Wainwright (the right to legal representation), to Miranda v. Arizona (the right to remain silent during police interrogation), to Mapp v. Ohio (protection from unreasonable search and seizure), to Loving v. Virginia (right to of interracial couples to marry) to Obergefell is now a target.

Take this as your wake-up call.

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