When President Donald Trump announced his Supreme Court nominee to replace retiring Justice Anthony Kennedy, leftist groups were so set on opposing him, they didn’t even bother mentioning his name. The thing is, even if a confirmed Justice Brett Kavanaugh were to overturn the key Supreme Court rulings making abortion and gay marriage legal across the U.S., that would not make these practices illegal.
Senate Democrats have argued that Kavanaugh would strike down Roe v. Wade (1973), the Supreme Court case twisting the Constitution to say it guarantees a “right to abortion.” Similarly, former Democrat presidential candidate Hillary Clinton warned that Kavanaugh’s confirmation would devastate “LGBT rights,” a hint that he might overturn Obergefell v. Hodges (2015), the Supreme Court case twisting the Constitution to say it guarantees a “right” to same-sex marriage.
Both of these Supreme Court cases struck down state laws on the issues of abortion and same-sex marriage, forcing a national legal change without the people’s involvement. The Court’s activism subverted the Constitution’s clear process for amending the Constitution, instead reinterpreting the Constitution to create “rights” that neither the plain text of the document nor the authors intended.
Roe v. Wade followed the 1965 contraception case Griswold v. Connecticut, which found in the “penumbras of the Bill of Rights,” a right to privacy that Roe twisted into a right to abortion. Roe reinterpreted the 14th Amendment as a right to abortion, despite the fact that at the time the 14th Amendment was ratified, abortion laws were being tightened, not loosened.
The text of that amendment — that no state can “deprive any person of life, liberty, or property, without due process of law” — not only fails to mention abortion, but could be used as an argument to defend the lives of unborn babies.
Obergefell was even more tenuous, as almost every state in the country and every law for most of American history acknowledged marriage as between one man and one woman. Homosexuality only became accepted by the majority of Americans recently, and the Court clearly jumped the gun on this issue.
Not only did the Court jump the gun, it opened a huge can of worms on the issue of religious freedom. By ruling that same-sex attracted people have the right to marry someone of the same sex, the Court left a huge issue — whether or not conservatives, Christians, Muslims, Jews, and even atheists who disagree with calling same-sex unions “marriage” would be able to dissent, and in what way.
Thankfully, Justice Anthony Kennedy, who wrote the majority opinion, defended the rights of religious people to dissent, but exactly how far that dissent is justified must still be worked out. Many Christians who gladly serve LGBT people in their normal business have been attacked by the government for refusing to serve same-sex weddings.
Liberals argue that overturning Roe and Obergefell will cause disruption, and this is true. But both decisions caused disruption of their own.
What would overturning these cases actually do? They would return America to the status quo ante, opening up the issues of abortion and same-sex marriage to the states.
If liberals are right and Kavanaugh would prefer to overturn Roe — which would fulfill Trump’s campaign promise to nominate Supreme Court justices who would do so — such a ruling would not immediately make abortion illegal everywhere.
Most Americans believe abortion should be legal, but only under certain circumstances. Similarly, most Americans believe same-sex marriage should be legal, but they are divided on other issues around it.
Issues like dissent and opting out of celebrating same-sex marriage are important, as are issues like what circumstances justify a woman procuring an abortion. America is a diverse country, and a one-size-fits-all policy would not do justice to the public.
Opening the issues of abortion and same-sex marriage to public debate in state-by-state elections would be a positive step forward for both liberals and conservatives.
State policies are more directly representative of the people, and multiple local solutions would enable a more realistic balance between pro-life and pro-choice positions and conflicting positions on same-sex marriage. Tensions are high on both of these issues, and allowing conservatives and liberals to debate them on the state level would help deflate the distrust and anger on key polarizing issues.
A note to the Democrat Chicken Littles: Majorities in 44 states approve of legalizing same-sex marriage, according to a poll by the Public Religion Research Institute (PRRI). Overturning Obergefell would immediately spark laws across the country to legalize same-sex marriage, and those laws — which would have to be representative of local conservatives as well — would include vital defenses for religious freedom.
Abortion would be more difficult, but most states would allow the practice in limited circumstances. Furthermore, laws on a state-by-state basis would involve local debates on the heated issue, allowing diverse opinions to be represented in law.
Finally, the best argument for overturning Roe and Obergefell with Kavanaugh on the Supreme Court might be the judge’s reluctance to turn the courts into an activist branch of the government. Both Kavanaugh and Chief Justice John Roberts are gradualists — they want the Supreme Court to uphold the Constitution and to only alter settled precedent in a careful manner that causes minimal disruption.
When the Obamacare individual mandate came before Kavanaugh and Roberts, both of them insisted that courts should hesitate to overturn the will of the people on such legislation. Similarly, they would argue that courts should tread carefully in reversing precedent that so many people rely on.
If Kavanaugh and Roberts join the other conservatives on the Court in overturning the unconstitutional rulings in Roe and Obergefell, they would likely insist that abortion and gay marriage be protected until the states make their will known on these issues. They would try to minimize the jarring nature of the transition.
Make no mistake, the Constitution is silent on abortion and same-sex marriage. Roe and Obergefell were activist and unconstitutional rulings.
Even so, many people rely on them, and Kavanaugh and Roberts are committed to minimizing disruption. If the Supreme Court does overturn these rulings, a conservative majority with Kavanaugh will dampen the disruption and emphasize the fact that they are opening abortion and same-sex marriage to public debate.
Abortion and LGBT activists would be furious, but overturning Roe and Obergefell would be good for all involved, as it would enable the law to be more representative of the people on these extremely divisive issues.