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Eugene’s re-posting of Professor Stephen Gilles’ argument about Obergefell v. Hodges in the Mississippi abortion case this Term prompted me to take a quick look at what the other briefs in Dobbs v. Jackson Women’s Health are saying (and mostly not saying) about the landmark same-sex marriage decision.

There were 81 briefs on the petitioners’ side (supporting Mississippi) filed in late July.  Many of them unabashedly compare Roe and Casey to decisions like Dred Scott and Lochner v. New York as examples of constitutionally unsound results that caused harm and injustice.

By my count, only 11 of the 81 briefs even cite Obergefell. Of those 11, eight simply refer to a dissent in Obergefell, most commonly the one from Chief Justice Roberts, for the proposition that judges should be careful about declaring unenumerated rights lest they circumscribe too many democratic choices. But the briefs do not directly criticize the outcome or otherwise critique the reasoning of Obergefell. (Of course, I do not mean to suggest that the amicus brief authors support same-sex marriage. Many are among the most prominent opponents of it as a matter of policy and constitutional law.)

Of the three briefs that deal with the substance of Obergefell, two can be classified as relatively favorable. One is the brief from Professor Gilles. He writes: “Roe and Casey were not rightly decided under the ‘reasoned judgment’ approach as described and applied in Obergefell. The right to elective abortion was adopted and reaffirmed on the basis of specious arguments, question-begging assumptions, and inconsistent reasoning, not reasoned judgment.” (p. 7) In his view, Roe and Casey misrepresented Anglo-American history and traditions related to abortion and failed to engage the applicable precedents with “principled consistency.” The implication is that Obergefell was a defensible application of the fundamental right to marry while Roe was an ugly excrescence on constitutional doctrine.

The second of the three briefs dealing substantively with Obergefell is the one for Mississippi itself.  The petitioners’ brief seemingly concedes the very formulation of the constitutional issue asserted by the gay couples in Obergefell.

Nor can a right to abortion be justified under Obergefell v. Hodges, 576 U.S. 644 (2015), which recognized a fundamental right to marry. Obergefell applied the understanding that when a right “is fundamental as a matter of history and tradition”—like marriage—then a State must have “a sufficient justification for excluding the relevant class” from exercising it. Id. at 671. That understanding has no relevance here, where the question is not “who [may] exercise[ ]” a fundamental right to abortion but whether the Constitution protects such a right at all. (p. 13)

The challenge for gay couples in Obergefell was to get the Court to see the claimed constitutional right in exactly this way: as the logical and experience-based affirmation of an old right (the right to marry), rather than as the a priori concoction of something new (the right to same-sex marriage).

Similarly, Mississippi posits a world of doctrinal difference between abortion and same-sex marriage (and homosexual conduct) when it comes to harm:

Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life. Cf. Obergefell, 576 U.S. at 679 (“[T]hese cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (similar).

Perhaps Mississippi felt it had to adopt these perspectives on Obergefell because the Court itself adopted them. There is a difference between accepting premises for the sake of argument and actually believing those premises. Abortion opponents are already asking the Court for a monumental reversal. There’s no need to add yet more to that burden.

Nobody supposes Mississippi’s lawyers suddenly awoke to the merits of a constitutional right to gay marriage. And few gay marriage supporters will take much comfort in the comparative silence about Obergefell coming from Mississippi’s 80 amici. Prominent LGBT rights groups and advocates warned in an amicus brief filed yesterday that overruling Roe and Casey “cannot be reconciled with this Court’s decisions affirming the fundamental equality of women and of LGBTQ people.” (p. 18)

But the effect of the argument being made by Professor Gilles and Mississippi is to offer the Court a way to do precisely that: overrule Roe and Casey without threatening other important precedents. Whether such efforts to distinguish Roe/Casey from Obergefell could be successful is a subject for another day.

There is, however, one notable brief supporting Mississippi that squarely takes on Obergefell–and much more besides. I’ll have more to say about that in a separate post.

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“History is made by intense, compact minorities,” says Washington Post columnist George Will, who believes that Rep. Alexandria Ocasio-Cortez (D–N.Y.) “and her squad or cohort have the energy in the Democratic Party. A lot of people say, ‘Gee whiz, I did not know Joe Biden was this far left. He’s not left, not a progressive, he’s a Democrat. And he goes where his party is being pulled.” Will says that starting in the mid-1960s, followers of Sen. Barry Goldwater (R–Ariz.) had the same effect on the Republican Party, eventually leading the recasting of the GOP as the party of small government and the election of President Ronald Reagan in 1980.

In 1973, Will was a young academic coming off a stint as a Senate staffer when he began writing columns for National Review and The Washington Post. Since then he has churned out “6,000 or so” pieces (his count) on a weekly schedule, calling to mind the longevity and endurance of Cal Ripken Jr., who played more consecutive baseball games than anyone in history and whose work ethic was lionized by Will in his 1990 bestseller, Men at Work: The Craft of Baseball.

Will’s newest book is American Happiness and Discontents, a collection of columns from 2008–2020 that covers the Great Recession and the Obama years to what he calls the crybaby presidency of Donald Trump and the rise of identity politics as a major force in contemporary America. Of special interest are his columns drawing complicated lessons from the World War II era, when the country triumphed over authoritarianism and genocide abroad even as it practiced racial apartheid at home. Will’s analysis of and love for America is unabashedly patriotic but it is never jingoistic or untroubled by tough historical truths.

Though he started out firmly on the conservative right, Will has become more and more libertarian, especially in his insistence that mere politics should never be the all-consuming passion of human endeavor and that America remains a place dedicated to a future that is better than the present. “If we can rein in our appetite for government to dispense benefits,” he says, and replace it with a government “that defends the shores, fills the potholes, and otherwise gets out of the way, we’re going to see again, the creativity of the American people.”

Photo Credits: Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons; Photo by SpaceX on Unsplash; Reason, 1978; Photo by Luke Stackpoole on Unsplash; Albin Lohr-Jones/ZUMA Press/Newscom; Albin Lohr-Jones/ZUMA Press/Newscom; Jeff Malet Photography/Newscom; Steve Sanchez/Pacific Press/Newscom; GEORGE BRIDGES/KRT/Newscom; Jeff Malet Photography/Newscom; William Reagan/ZUMAPRESS/Newscom; Everett Collection/Newscom; Tom Williams/Roll Call/Newscom; Roger L. Wollenberg UPI Photo Service/Newscom; 1987 Commercial—Mrs. Smith’s “Pie in Minutes”; Photo by Nelson Ndongala on Unsplash

Music Credit: “December,” by Still Life

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Our Kind of People. Fox. Tuesday, September 21, 9 p.m.

Two ancient and thoroughly regrettable television themes recur tonight as broadcast TV’s anemic fall roll-out of new shows continues. One is the inexplicable CBS affection on dullard police-procedural shows about the FBI. The addition of FBI: International makes three of them on the air at the moment. Advance screener episodes weren’t provided to critics, so I can’t say with absolute authority that it’s a dog—but anytime a network turns down free publicity for one of its shows, it’s a strong indicator of canine DNA.

The other elderly chestnut being reroasted tonight is that of costume dramas about the tragic problems of the one-percenters. From Dallas to Downton Abbey, from Succession to Billions, TV keeps trying to expand upon F. Scott Fitzgerald’s oh-so-insightful remark, “Let me tell you about the very rich. They are different from you and me.” (Rather less effort has been expended on Ernest Hemingway’s rejoinder, “Yes, they have more money.”) This has mutated from a trend to an obsession: There’ve been five versions or spinoffs of Beverly Hills 90210, four of Dynasty, and various incarnations of Upstairs, Downstairs tyrannized the BBC for more than four decades.

Admittedly, some of these expeditions into gilt and glitter have been fun. I watched both The O.C. and the original Gossip Girl to their Jordache-ripping finales. Alas, Fox’s new addition to the genre, Our Kind of People, doesn’t quite rise (or is it sink?) to that level. Its main appeal is novelty—the show’s cast is entirely black. That may win it some audience loyalty, but better plotting and more interesting characters would have been a better approach.

Fox’s publicity for the show says it’s based on Lawrence Otis’ sociological study Our Kind of People: Inside America’s Black Upper Class. Actually, a more direct influence was probably ABC’s 2011-2015 drama Revenge, in which a trailer-trash teenager infiltrates the idle-rich beach resorts of the Hamptons to wreak bloody havoc on a family she thinks framed her father for a crime that sent him to prison.

The infiltrator in this case is Angela Vaughan (Yaya DaCosta, a veteran of all three of Fox’s Chicago-brand cop and medical dramas), who plays an aggressive black hair-care entrepreneur who comes to the posh black beach resort of Oak Bluffs in Martha’s Vineyard in hopes of joining an influential business sorority that will help her launch her new products. Vaughan claims her mother used to be a plutocratic summertime regular in the Bluffs, though the ladies know better: The mom was actually a maid with a rap sheet.

That runs Vaughan head-on into the new president of the sorority, corporate ball-buster Leah Franklin-Dupont (Nadine Ellis, BET’s Let’s Stay Together), who has just ruthlessly ousted her own father from the family business. Put off by Vaughan’s naked ambition and correctly sensing that her own family is somehow a target, Franklin-Dupont accelerates into full bitch mode in record time.

There are plenty of annoying distractions in Our Kind of People, particularly the heavy and pointless use of 1970s cop-show camera gimmicks like wipes and split screens. It can also feel more than a little schoolmarmish. Is it really necessary for Vaughan to deliver a lecture on the ethnic importance of hair care (“A black woman’s relationship with her hair starts well before she can even walk”) directly into the face of Franklin-Dupont—who is herself black? And a lot of Vaughan aphorisms are just plain idiotic, like “A woman who can do her own hair is not dependent on anybody.” Try telling that to somebody in the middle of a blood transfusion.

But mostly the problem with Our Kind of People is its silly parlor-game sensibility. A woman with a zillion-dollar new process for black hairdos would rushing it into the marketplace rather than trying to muscle her way into the Cool Girls Club. As Alexis Colby once said when an enemy called her a bitch, “If I am, take a lesson from me. You may need it in life.”

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