They Cracked the Code on Minority Rule
Hint: It Involved Cheating, Lying, and Hypocrisy
The week of Brett Kavanaugh’s confirmation hearings—when we learned all about the drinking habits of PJ and Squee and heard credible accusations that the soon-to-be-Justice had sexually assaulted at least one woman while in high school—I was beside myself with the same kind of powerlessness and rage I feel today. I decided to use the platform I had at the time, a sociology class I was teaching at a local university, to explain what I was feeling. I titled the lecture Why the Supreme Court is Important to Your Sex Life, and Why You Don’t Want a Misogynist on It.
My presentation went through decades of relevant Supreme Court cases. I discussed Griswold v. Connecticut (1965), which granted married couples the right to use contraception, and Eisenstadt v. Baird (1972), which extended those rights to unmarried individuals. I tried to stress to a room full of young adults born in the early 2000s how recent these decisions were in the grand scheme of history and how imperiled they could be.
I talked about Lawrence v. Texas (2003), which declared laws against sodomy and same-sex behaviors unconstitutional, and told them the story of how police entered John Lawrence’s apartment in response to a complaint about a possible weapons disturbance. There was no disturbance, but officers found Lawrence and Tyron Garner, another adult man, having consensual sex. The two men were arrested and convicted on charges of deviant sexual intercourse which violated a Texas law forbidding certain same-sex sexual behaviors. I tried to get them to imagine being arrested for having consensual sex in their own bedrooms.
I also told them about Bowers v Hardwick (1986), the decision that Lawrence officially overturned, mostly so I could tell them Sheldon Goldman’s joke about how the court seemed to forget that anal and oral sex (which were at issue in that case) were things that all couples engaged in. “What are they going to do,” my smart and kind of schlubby college professor asked us students, “put up a sign, ‘Now entering Georgia, drive straight, and keep your mouth shut?’”
I discussed the fight for same-sex marriage rights that did happen during their lifetimes and how it ended (or not) with a decision in Obergefell v. Hodges (2015), which declared state bans on same-sex marriage unconstitutional and required states to recognize same-sex marriages performed elsewhere.
Of course, a good portion of the class was about Roe v. Wade (1972) and the numerous attempts over the years to chip away at the right to end a pregnancy. At the time, Roe was in place, and state laws were a mishmash of time limits, waiting periods, forced ultrasounds, and TRAP laws designed to close—or at least inconvenience—as many clinics as possible.
Not anymore. Thanks to Dobbs v. Jackson Women’s Health (last week), those of us with uteruses no longer have a constitutional right to control our bodies. It is now up to the states to decide if, until when, and under what circumstances we may end a pregnancy. Many states seem to be coming down on the side of never.
The Consequences
The practical implications of this decision are far reaching and will, as always, affect the already marginalized and disenfranchised the most. My children—who are growing up with a lot of privilege in a blue state that just codified abortion rights—will be fine. Other people’s children will be forced to have children they don’t want and can’t afford. This decision will further trap people in a cycle of poverty.
In what may be the worst Freudian slip in politics, Rep. Mary Miller (R-IL) said out loud at a Trump rally this weekend that the decision is a “historic victory for White life in the Supreme Court." Miller claims she misspoke but this is the same politician who once started a sentence with “Hitler was right.” (I don’t care if that sentence ends in 2+ 2 does equal 4, you can’t start a sentence with that.) The racist undertones of this decision and its ramifications cannot be denied.
The decision will trap others in situations—whether because of an ectopic pregnancy or complications from a miscarriage—where they can’t get the medical care they need because of state laws prohibiting certain procedures. People will die from this, and that’s not an exaggeration.
The constitutional implications of this decision are far reaching as well. The majority decision in Dobbs essentially says that Roe was wrong because any right that is not explicitly stated in the constitution needs to be “deeply rooted in the nation’s history,” and the right to abortion is not. While the majority opinion promises that this only applies to abortion laws, Justice Clarence Thomas took it further in a concurrent opinion in which he specifically calls out Griswold, Lawrence, and Obergefell saying that if Roe was wrong, these decisions were wrong too and the court has a duty to correct its errors. Interestingly, Thomas did not call out Loving v. Virginia (1967), which was the decision that made his own marriage to a white woman legal (a woman who is now under scrutiny for her role in Trump’s attempt to stay in office despite the election results).
The three liberal justices who remain on the court essentially agree with Thomas—not that we should reconsider these other cases but that the new decision clearly puts those decisions in jeopardy. If unenumerated rights have to be “rooted in history,” and 1973 when Roe was decided doesn’t count as historical enough, then: “…one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
The Long Game
Cheating, lying, and hypocrisy is what got us this current court. When Scalia died, Mitch McConnell refused to fill the seat because Obama’s presidency was almost over. (It was February of an election year.) When Ruth Bader Ginsberg died, Mitch McConnell raced to fill the seat because it was his moral duty to make sure no seat was empty. (It was September of an election year). Each and every Justice who signed on to that majority was asked about Roe in their confirmation hearings, and they either flat out lied or tap danced around the truth, saying it was settled law and they had no plans to mess with settled laws. While Senators Manchin and Collins have pretended that they were surprised by these justices changing their tune so quickly after being confirmed, no one else was snowed.
The Republicans play the long game, and they don’t play it by the rules. Don’t be fooled by the majority’s last-minute addition (it wasn’t in the leaked draft) that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”
They’re coming for your birth control, your porn, and your ability to decide if you want anal or oral tonight. As loony-tunes as the newly passed Texas GOP platform sounds—it supports Texas’ succession from the United States and declares Donald Trump the winner of the 2020 election—we need to be talking about it because this is where the party wants to go.
As Goes Texas
The 40-page document the Texas GOP now hold sacred should give us all pause, if not heart palpitations. It’s a roadmap for taking away individual liberties and blurring the lines between church and state. All things this new Supreme Court seems into as well.
Lots of God
“The sanctity of innocent human life, created in the image of God, which should be equally protected from fertilization to natural death.”
“We support prayer, the Bible, and the Ten Commandments being returned to our schools, our courthouse, and other government buildings.”
No homosexuality or gender diversity
“Homosexuality is an abnormal lifestyle choice.”
“We affirm God’s biblical design for marriage and sexual behavior between one biological man and one biological woman, which has proven to be the foundation for all great nations in Western civilization.”
“The official position of the Texas schools shall be that there are only two genders: biological male and biological female. We oppose transgender normalizing curriculum and pronoun use.”
Reparative therapy is good
“Therapists, psychologists, and counselors licensed with the State of Texas shall not be forbidden or penalized by any licensing board for practicing Reintegrative Therapy or other counseling methods when counseling clients of any age with gender dysphoria or unwanted same-sex attraction.”
Gender affirming care is bad
“We oppose all efforts to validate transgender identity. For the purpose of attempting to affirm a person age 21 or under if their perception is inconsistent with their biological sex, no medical practitioner or provider may engage in the following practices
Intervene in any way to prevent natural progression of puberty.
Administer or provide opposite sex hormones.
Perform any surgery on healthy body parts of the underage person.”
No sex education in school
“We demand the State Legislature pass a law prohibiting the teaching of sex education, sexual health, or sexual choice or identity in any public school in any grade whatsoever…”
“Operators of adult sex entertainment businesses and venues, adult entertainment of any kind, including Drag Queen Story Hour, shall not be part of educational programming in public schools, libraries, or any other taxpayer-funded program for children.”
“We support passage of a law more comprehensive than the Florida law that prohibits instruction in sexual orientation and gender identity in public schools.”
Yes, education on the pre-born
“Texas students should learn about the Humanity of the Preborn Child, including life-affirming definitions of life and the study of life, life begins at fertilization, milestones of fetal development at two-week gestational intervals, use of fetal baby models, witnessing of a live ultrasound, viewing the Miracle of Life type video, and (for high school students) the contents of the Woman’s Right to Know booklet.”
Total parental rights (as long as they don’t want gender affirming care)
“We support the fundamental constitutional rights of parents to raise and educate their children, including their rights to direct the care, custody, control, upbringing, moral and religious training, and medical care of their children.”
“Parents need more effective mechanisms to enforce their rights in education…. enforcement must include criminal, civil, and other enforcement measures.
No Spanish
“We encourage non-English-speaking students to transition, via best practices, to English within two years, allowing them to quickly assimilate and succeed in American society
No porn
“The State of Texas shall recognize that pornography is a public health hazard.”
More rights for police officers
“We call upon the Texas Legislature to improve no-knock warrant procedures to protect law enforcement and the community.”
All the guns
“Pass unrestricted Constitutional Carry by amending Article 1, Section 23, of the Texas Constitution by removing, “but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”
Minority Rule
If this all sounds like arguments we thought we’d fought and won decades ago, it should. They want to put the genie firmly back in the bottle, throw gay and bisexual people back in the closet, send women back to the kitchen, make English the official language, and pretend transgender people never existed.
It doesn’t seem to matter that the public doesn’t want these regressive laws. A poll conducted after the decision dropped last week found that 56% of Americans oppose the decision compared to just 40% who support it. Moreover, most Americans saw this as a political decision rather than a legal one (57% to 36%) and many (56%) fear that it will be used to remove protections for contraception and same-sex relationships.
Here's the part that really scares me: Republicans know this. They know that voters want abortion rights, that we rely on our birth control, and that we’ll be super pissed if the government takes away our porn. GOP strategists are likely not surprised by the numbers in this poll that suggest the decision will motivate Democrats to the polls in November more than Republicans. They realize that it could jeopardize the midterms (though that seems optimistic if gas prices and inflation remain top of mind). As one commentator put it, they are not acting like a party that wants to win elections.
This makes me wonder what they know that we don’t know. Are they convinced that their gerrymandered maps are strong enough to withstand the true will of the electorate? Are they planning January 6th style coups any time they don’t win going forward? Are they relying on this new conservative court made up of young justices with their lifetime appointments to carry their regressive torch into the next decade and beyond? Are they confident that with all these strategies in place, they’ve cracked the code on minority rule?
I’m not suggesting we give up or stop fighting. Obviously, we need to fight harder or smarter (or possibly dirtier) to stem the coming tide of authoritarianism and religious tyranny. Right now, however, I’m feeling defeated, depleted, and demoralized. Maybe I’ll start next Wednesday.