The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique…and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised.”...
For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”…we have a duty to “correct the error” established in those precedents.
These few sentences, taken from Justice Clarence Thomas's concurring opinion in Dobbs v. Jackson Women's Health Organization, have kicked the left into a panicked frenzy. Just a few short months ago, the right to kill defenseless children was considered unassailable. A single decision wiped it away, and many now worry that other imaginary rights will be likewise uninvented: the right to chemical self-castration, the right to sodomy, the right to pretending two men can get married. Sensing a chance to distract from the collapse of their agenda, congressional Democrats brought two of these three to a vote this week.
In the first of those votes, 47 House Republicans joined every Democrat to pass the ironically named Respect for Marriage Act, which would repeal the 1996 Defense of Marriage Act and enshrine in federal law the gay-marriage protections exnihilated in Obergefell. Most of the 47 turncoats are unsurprising—notorious squishes like Elise Stefanik, Liz Cheney, and Adam Kinzinger. Lee Zeldin, who is currently running for governor of New York, was a particularly disappointing participant, as was National Republican Congressional Committee chairman Tom Emmer of Minnesota.
Rep. Kat Cammack of Florida typifies the absurdity of the pro-gay-marriage Republicans’ arguments. According to a screenshot posted by Jon Schweppe of the American Principles Project, Cammack snapped in a direct message to a college student who had posted critically of the group, arguing that “true conservatives don’t pick and choose which amendments they want to uphold. They are either all in or not. [The] 14th amendment is clear.” She described opponents of the bill as “horribly racist.” (A mention of interracial marriage was shoehorned into the measure to allow for just this response to critics.) Rep. Cammack ended the bizarre message with the admonition to “remember that true conservatives want as little government in their lives as possible which is exactly what we did in supporting [the bill].”
The buck does not stop with Kat Cammack, though. From here, the Respect for Marriage Act moves to the Senate, where ten Republicans will have to join all 50 Democrats to beat a legislative filibuster. CNN is on the story, and has already asked every one of the 50 how he or she plans to vote. At the time of this writing, a grand total of eight have said they would not vote to make a farce of marriage. Five—Susan Collins, Lisa Murkowski, Rob Portman, Thom Thillis, and Ron Johnson—have already admitted that they would. Fifteen are apparently undecided, and 22 have not answered the question.
Perhaps the most disturbing thing about the whole affair is just how little distance there is between the two Republican camps. Roger Wicker of Mississippi said he’d only “probably be a no” because he “do[es] not believe the Supreme Court is going to touch this issue.” Bill Cassidy of Louisiana was even more pathetic, dismissing the Respect for Marriage Act as “a silly messaging bill” when same-sex marriage is already “obviously settled law right now.” This is apparently the right flank of the party on the issue, at least among those who actually hold power: those who admit that evil can be made good, so long as it is done at the state level rather than the federal.
Maybe even more devastating is that the jelly-spined, soft-bellied, limp-wristed sycophants of the GOP elite do this all of their own accord. They want to cower and grovel before their betters on the left. They are perfectly happy to let their enemies set the terms of every argument and define the rules of engagement, no matter how skewed they may be against the interests of conservatives. In fact, they might prefer it this way; it lets them wash their hands of actual politics entirely. Most of them would be happy to end their careers without ever having fought a meaningful moral battle. Without any of the brute coercion normally required, the Republican Party has turned itself into the kind of docile, nominal opposition usually only found in authoritarian states.
A bit more hope is offered by the second vote, in which only eight Republicans joined the Democrats in voting to legislate a nationwide right to contraception. Rep. Cammack was on the other side this time, calling the bill "the Right to Deception Act" and its supporters "a real piece of work." Florida firebrand Matt Gaetz likewise voted against the measure, though for questionable reasons. Insisting that he supports contraception, the congressman explained on Twitter that, "Contraception likely needs protection FROM congress more than it needs protection BY congress. If there is any entity you don’t want involved in your contraception choices - it’s the federal gov."
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Leading the charge on the other side was South Carolina's Nancy Mace. The twice-divorced mother of two showed up to work on the day of the vote in a jacket sloppily taped with the message: "My State is Banning EXCEPTIONS / Protect CONTRACEPTION." As the left's foot soldiers often do, Ms. Mace says more than she means to here. Implicit in her fashion statement is the assumption that abortion and contraception go hand in hand. And they do, both in the legal sense that Roe could never have happened without Griswold, and in the moral sense that cutting off life by chemical means fosters the cultural context in which cutting it off by violent means becomes conceivable, then common, then enforced.
I suspect this is obvious, on some level, to a number of the Republicans who did the sensible thing and voted against the Right to Contraception Act. The two exist so closely to each other in the public consciousness that even members of the House of Representatives can sense, without actually tracing the lines, that the one cannot be uprooted while the other is left in place—that contraception does, in fact, carry no small part of the moral weight of abortion. (The bill itself even conflates the two, with its inclusion of a provision for abortifacient drugs.)
But the same is true, though more obliquely, of gay marriage. We are dealing here with a single, revolutionary ideology that has ravaged the American family and the public moral order of this country for three full generations. An election is coming in just four months, and we can hope with caution that it will deliver leaders with a better answer to this existential threat than the sincere insistence that they don't mean it any harm.