For once, the sexual revolutionaries are not wrong | National Catholic Register
COMMENT: Once the Supreme Court stops supporting the sexual revolution with so-called invented-from-scratch rights, many “settled questions” will be up in the air.
Sexual revolutionaries are not wrong to worry about “gay marriage” and contraception, but not necessarily for the reason they think.
They should be worried, whatever assurances the Supreme Court justices might give in their soon-to-be published opinion on Dobbs v. Jackson Women’s Health. They should be worried whether we pro-lifers really are as bad as they think we are. They should be concerned, for one simple reason: once the court stops supporting the sexual revolution with so-called invented-from-scratch rights, many “settled issues” will be up in the air.
Although in his project of roe deer decision, Judge Samuel Alito said it would be no impact other so-called rights, such as “same-sex marriage,” logic would suggest otherwise. Mandating an unlimited abortion license forced the Supreme Court to invent rights in the Constitution that simply do not exist. There is no right to privacy, which the court claimed to find in the First Amendment.
This imaginary right to privacy has been the basis of Griswold v. Connecticut and Eisenstadt v. Bairdas well as roe deer. In 1965, Griswold found a right to “marital privacy,” which was the basis for prohibiting states from enacting contraception regulations that affected married couples. In 1972, Eisenstadt extended this right to privacy from married couples to unmarried people. This confirmed the suspicions of the defenders of traditional morality: what you say you want (contraception for married couples with serious health problems) is not really everything you want. Imposing an invented “law” on the people and the legal infrastructure will quickly turn into something much bigger.
Eisenstadt provides the basis for federal policies promoting contraception, such as requiring minors to receive “reproductive health services” without their parents’ knowledge. Medicaid, the health program for the poor, actively promotes contraception.
Contraception is a mandatory part of state Medicaid programs and is reimbursed at the lowest rate. Contraception must be accessible to minors who have passed the age of puberty, even without the consent of their parents. According to Medicaid rules, contraception must be free for welfare recipients, without even a nominal copayment. And state governments are incentivized to actively promote family planning services, especially to minors, since their expenses for awareness, advertising and sex education are reimbursed at the most favorable rate of 90%. These rules were adopted as part of the first major overhaul of The Great Society, in 1972, the same year as the Eisenstadt decision. As I said in my book, sexual state (pp. 107-108):
It is not now, and never has been, government policy to simply make contraception legally available and accurately labeled and then let families use it as they wish. The federal government has been and continues to be an active promoter of contraception. We have no “libertarian” policy in this area. Allowing people to make their own decisions about contraception has never been enough for the true revolutionary.
Let me add: true libertarians who value limited government and individual choice should be appalled by this story. They will read Daniel Moloney’s 2009 in three parties series with smoke coming out of their ears.
The First Amendment had a prominent place in the Bill of Rights. The First Amendment was enacted to protect freedom of speech and religion. It says nothing about privacy, much less about abortion or about the government actively promoting contraception to minors.
And there is no right to “same-sex marriage” in the 14th Amendment. The 14th Amendment was ratified after the Civil War to prevent Southern states from restricting the rights of former slaves. Only judges determined to legislate from the bench could interpret this as mandating same-sex marriage nationwide. Roe vs. Wade was decided more than 49 years ago. But Oberfell v. Hodges – which made same-sex civil marriage compulsory throughout the country – was only decided in 2015. Doesn’t that make Oberefell a weaker precedent than roe deer?
Skinner v. Oklahoma is a case often cited by same-sex marriage activists in favor of a “fundamental right to marriage”. However, the context of Skinner was a eugenics law. Under Oklahoma law at the time, Mr. Skinner could be sterilized because he met the definition of a “habitual criminal” under the law. He had three convictions for theft, including one for stealing chickens. When the Supreme Court struck down sterilization as a punishment, it said sterilizing him amounted to a violation of his “fundamental right to marry” and found a family. The State of Oklahoma was about to manufacture goods damaged by poor Mr. Skinner in the marriage market.
In other words, the “fundamental right” in Skinner assumes that marriage is fundamentally about procreation. Citing this case in the context of the inherently sterile union of same-sex couples, as the court has done in cases that preceded and included Oberfelfell v Hodges is a complete non-sequitur.
Maybe we will have the opportunity to talk about it one day.
There is an important difference between roe deer and Oberefellbut: roe deer galvanized the pro-life community and created a vibrant and genuinely grassroots national movement. After Oberefell, the marriage supporters raised their hands and said, “Oh, well, we tried,” and moved on to other questions. The movement for the right to life has never given up.
We are fighting transgender in 2022 precisely because we renounced marriage in 2015. Oberefell degendered marriage, which led to the removal of gendered words from legal documents. “Husband” and “wife” have been replaced by “spouse” or “partner”. “Mother” and “father” have become androgynous “parents”. No wonder we are fighting transgender in schools.
There are many precedents where the Supreme Court has erred. In the 1858 Dr Scott decision, he said “the black man has no rights that a white man is bound to respect”. roe deer and his ill-begotten progeny declare, in effect, that the unborn person has no rights which a born person is bound to respect. If the Supreme Court overturns roe deermany other invented “rights” will be up for grabs.
Jennifer Roback Morse holds a Ph.D. in economics and taught at Yale and George Mason University. She is the author of The Sexual State – How Elite Ideologies Destroy Lives and Why the Church Was Right All Along. She will present: “Defending Traditional Christian Sexual Ethics Like a Pro” at the Fifth Annual Ruth Institute Conference Sexual Revolution Survivors Summit June 24-25 in Lake Charles, Louisiana.