> Loving v. Virginia, 388 U.S. 1 (1967), was a landmark civil rights decision of the U.S. Supreme Court in which the Court ruled that laws banning interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution.
Substantive due process is far shakier. It's Justices deciding what rights they think people should have and then working backwards as best they can to justify them. The back to back gun rights & abortion rulings lays it bare. There's just no intellectually honest way of finding a right to an abortion but not a right to bear arms.
IMHO, the substantive due process was the wrong way about this. It was a shaky foundation and as more rights were found the logic got shakier. They should have used the right to peacefully assemble and based most of these substantive due process cases on them.
This is literally 99% of a Supreme Court justice's job.
Here it is in its entirety:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Please point out the part of that amendment that references the right of people to have concealed carry for the purposes of self defense. Because it seems to me that they tried to be as obtuse and textualist as can possibly be with regards to Roe, but apparently the second amendment grants all sorts of rights that don't actually exist in the Constitution.
Interracial marriage has existed for pretty much all of human history (though race as a concept likely didn't, at least not the way it is perceived in modern times). Heck you even have Moses marrying an Ethiopian woman and his siblings spoke out against him over it and were punished by God for it (see Numbers chapter 12).
Gay marriage, on the other hand, has near zero historical precedence outside of a few cases with Roman emperors and stuff like that.
Gay marriage has existed for as long as marriage has, it’s just best documented when it involves emperors.
https://en.m.wikipedia.org/wiki/Timeline_of_same-sex_marriag...
But you know what doesn’t have a long historical precedence? Automatic weapons, or protecting money as speech.
You're describing the "living constitution"[1] view, which has not been the dominant position among Supreme Court justices for some time.
Now they're all "strict constructionists"[2], who think the opposite of what you describe: that the constitution should be interpreted just as it was written.
I’ll grant you automatic weapons though
It has, but not as a right. The Hippocratic oath specifically bans it:
> Similarly I will not give to a woman a pessary to cause abortion.
— Hippocratic Oath (AD 275, or earlier)
> Interracial marriage has existed for pretty much all of human history
is not the answer to the question originalism is asking. It asks whether there is a historical precedence for protecting that action as a right.
You don't need to look any farther than this very ruling! Abortion has been practiced since the beginning recorded history (and likely much longer) and books like the bible even instruct you on how to perform one. That history has no bearing on Alito or Thomas.
Not really, that depends on which translation of Numbers 5 you're looking at. It's not clear at all that the "Ordeal of Bitter Water" was supposed to induce a miscarriage.
to be clear, its pretty irrelevant to the argument because the bible is just one such example of the history of abortion. There are hundreds more and if it would help you can pretend I mentioned one of those instead.
The approach that Thomas favors is "text, history, and tradition". The words - as written - taken in light of what the author(s) intended and what was happening at the time.
https://www.thenation.com/article/society/abortion-ethics-ge...
As best I can tell it would be entirely legal for the US government to sell someone sentenced to life in prison to a private party.
That would be an anomaly in setting judicial precedent. If legal precedent was formally acknowledged for historical reasons, then we would be having a really long conversation on civil rights, _all_ civil rights.
And the issue may not be gay marriage, but straight up sodomy laws, which were introduced as religious inspired laws, most extensively Judeo-Christian. For these to stand, we would need to ignore the separation of church and state.
"In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell,"
This sounds like it needs a source.
As far as I understand, anti-abortion laws started getting traction in the 1800s. Before that, these were scattered and mostly religious inspired. Also, Hammurabi doesn't make any references to voluntary abortions.
The court found otherwise, you can read the majority's evidence in their opinion at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf starting on page 17:
"The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U. S. ___, ___ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” 2 DeLegibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–61 (H. Richardson & G. Sayles eds. 1955) (13th-century treatise)."
They go on for a few pages going over common law before discussing the historical record in the US.
Unsure if you're presenting that as the human history that exists "in Thomas's mind" or actual history
It has been abundantly clear to everyone that a black man can impregnate a white woman. And a black woman can have children with a white man. If this act (reproduction) is what marriage is about, then the sexes are not equal, and thus not worthy of equal protection. A man cannot impregnate a man. Whereas, any race can impregnate / be impregnated by any other race as far as we can tell.
If you have evidence to the contrary (that both sexes are identical when it comes to reproduction, which is the historical view of marriage Thomas may adhere to; or that various races cannot interbreed), then please do share.
> However, if one views marriage as a precursor to reproduction -- the historical view of marriage...
The historical purpose of marriage is the exchange/pursuit of status and resources[1]. Reproduction was an inevitable outcome of lack of contraceptives. The idea of reproduction being the primary purpose of marriage is pretty recent.
[1] https://www.psychologytoday.com/us/articles/200505/marriage-...
Historically, and actually still today, if you have actual reasons you can't conceive (for example, if a man cannot get an erection due to permanent and incurable impotence), then yes, the marriage can be declared anulled. Annulment is different from divorce because it makes it such that the marriage never existed at all at anytime. In other words, yes, certain conditions preventing conception can be used to claim that a marriage was fraudulent.
In certain legal jurisdictions, a castrated man cannot marry. While that may not always be true today, it has been the case historically. Prior to the modern day, people did operate under the assumption that those who certainly could not conceive could not marry, but of course, they didn't have the full understanding of conception we do.
> The historical purpose of marriage is the exchange/pursuit of status and resources
Yes, and the purpose of status and resources is to pass those along to your children. Also your article mainly talks about 'love' and marriage not reproduction.
> The idea of reproduction being the primary purpose of marriage is pretty recent.
This is completely baseless. Thomas Aquinas writes about the purpose of marriage as being for procreation. Given that at the time he wrote he represented an organization that represented the majority of moral thought in Europe... it's hard to actually believe these ridiculous claims. Moreover, status and resources were the main pursuit of the rich. The poor still married... usually for kids.
Source: https://www.newadvent.org/summa/5049.htm
> It would seem that the "sacrament" is not the chief of the marriage goods. For the end is principal in everything. Now the end of marriage is the offspring. Therefore the offspring is the chief marriage good.
Given that Aquinas is also pulling from historical sources (in this cases the Sentences by Peter Lombard), it's extremely likely this idea -- written very clearly in the 13th century -- originated well before then. What's modern is the claim that the chief aim of marriage in previous centuries was status / resources. Everyone in previous centuries understood that the way in which marriage produced those goods was children. A woman from one family marrying into another noble family would have little claim over her new status if the couple were unable to produce offspring. If a man had no offspring to inherit, the status and resources would end.
MORE SOURCES FROM EVEN EARLIER
In the 5th century, Augustine of Hippo clearly indicates in his treatise 'On the Good of Marriage' that offspring are one of three benefits of marriage (along with faithfulness and the sacrament of matrimony itself). In the summa, Aquinas attempts to argue which of these is the 'chief' good of marriage. Thomas believes the sacrament of matrimony itself is the chief good. Now, most here don't necessarily have the religious view of marriage (nor do they need to), but aside from the sacrament, it's faithfulness and offspring that remain. Nowhere there is status and power. And these men are again writing on the predominant moral system of the Western world for the past thousand years.
Going to secular philosophers, Aristotle (from whom Aquinas derived a lot) also consistently writes that marriage is for children. His other aims of marriage are community stability and pleasure. Again, nowhere does status and power appear.
Couples without children can adopt children, regardless of the gender of the parents.
Here's a Utah law firm offering advice on how to annul your marriage should you have found the man you married to be unable to have sex: https://www.isfma.com/law-and-order/when-ending-a-marriage-o...
Here's a review of case law in BC from the 2000s: https://disinherited.com/family-law-matters/annulment-for-no...
Scientifically, one cannot know if you're sterile until you've tried. There's no 'test' for sterility that truly works or that there hasn't been an exception too. Legally, once a marriage is fully consummated, it's more permanent than if it weren't. Historically, a marriage that was consummated could not be dissolved and was considered permanent at that point, so even if you later found out (usually after many years) that you couldn't have kids, the marriage would continue. Similar to how old people stay married.
I'm giving an historical view on marriage. Not saying how things should be. You seem incredulous at this view, but it was the prevailing view of marriage in Europe and the West for thousands of years.
I understand your position. On your point about why people think marriage is a right… I suspect this is because, at present, many rights are coupled with marriage - visitation rights at a hospital being the classic example.
This isn't about originalism. This is about the sitting judges' religious beliefs.
This is the droid you're looking for: https://www.npr.org/2022/05/18/1099542962/abortion-ben-frank...
It reiterates the thesis of the first article: "It just wasn't something to be remarked upon. It was just a part of everyday life."