Liars in Robes
by Sherry F. Colb
Much to the surprise of many observers, the House of Representatives recently voted to pass H.R. 8404, the Respect for Marriage Act (RFMA). Because of the Orwellian doublespeak to which we have all become accustomed, I hasten to add that this bill would give federal protection (via mandatory interstate recognition) to same-sex marriage (SSM), accomplishing the opposite of the shameful but similarly titled Defense of Marriage Act (DOMA) that Bill Clinton signed in 1996. The passage of RFMA in the House is significant for the safety it would extend to LGBTQ+ Americans in the wake of Sam Alito's (SA's) repugnant, reactionary, and religious opinion in Dobbs v. Jackson Women's Health Org. But RFMA has a subtext that we should not miss in our rush to celebrate the substance of what we hope will become the law.
The House passage of RFMA signifies that a majority of the House concluded that SA and at least three of his partners in crime (Gorsuch, Kavanaugh, and Barrett) are liars.
Some readers may be thinking that we already knew those Justices were liars. And they would be right. Each of them swore on their respective holy Bibles that they regarded Roe v. Wade as precedent entitled to respect, when they plainly intended to overrule the decision ASAP and annihilate the right against forced pregnancy from the moment of fertilization. But one can quibble over what each of the job applicants said during their confirmation hearings. Some lied and therefore committed perjury. Others deliberately misled Susan Collins.
In Dobbs, however, SA, on behalf of himself and three of the other religious fanatics, said that the outcome in the case does not mean that the constitutional rights to SSM, contraception, or other matters protected by the privacy precedents are at risk. SA even had one of his little temper tantrum in which he repeated his claim because someone -- here the dissenters and his colleague Clarence Thomas -- disagreed with him. Twice he wrote: "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
It is worth reviewing SA's line of "reasoning" here. He wrote a screed denying women the right against forced pregnancy, relying on the fact that the word "abortion" is nowhere in the Constitution and that the men who lived in the 18th and 19th centuries (as well as the 17th and earlier!) treated women like sexual and reproductive slaves to their husbands, so why would we in 2022 do any differently? Then, like a toddler who soiled his big-boy underpants but refuses to acknowledge it, SA asserted that SSM and contraception are different because no "potential life" is involved.
Logically, SA has no leg to stand on here, of course, because ejaculation involves potential human life, so condoms and other forms of contraception kill potential people, as does SSM, in which sperm cells and eggs that could have become people never do. In addition, neither SSM nor contraception appears in the text of the Constitution, and neither received legal protection at the Founding. SA is not the most intelligent member of this benighted Court, but he is certainly smart enough to know that his logical case for distinguishing abortion from the other privacy rights is weak and unconvincing.
More importantly, however, is the reasoning of the House of Representatives in voting yes on a bill to protect SSM. If members of Congress believed SA and three of his fellow fanatics about other privacy rights, the House members would have felt no need to pass a law protecting the right to SSM and the right to interracial marriage (which RFMA also protects), both of which the Court's current precedents already protect under Obergefell v. Hodges and Loving v. Virginia, respectively. The willingness to pass RFMA manifests the belief that SA was lying in Dobbs -- as were the colleagues who signed on -- when he said that the other privacy precedents were safe.
Let me repeat that statement for emphasis: A majority of our House of Representatives did not believe in the truth of AS's assertion that non-abortion privacy rights are safe after Dobbs. At least one house of Congress, by a majority, believes that SA is a liar and that Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are liars as well.
Clarence Thomas (CT), the one who was in law school when the Court decided Roe v. Wade but claimed that he never discussed that decision, is the truth-teller here. He alone -- of the illegitimate "high" Court Justices that joined SA's misogynist manifesto in Dobbs -- came out and said that overruling all of the privacy precedents was in the offing. And though we know that CT is also a liar -- he lied under oath about sexually harassing Anita Hill -- the House chose to believe him rather than SA and the other three.
It is a sad day for this nation when we must choose among the words of different perjurers and liars on the Supreme Court to determine the truth. Ironically, perhaps, we now have the most religiously devout Court in any of our lifetimes, and yet these Justices think nothing of violating one of the Ten Commandments: "Thou shalt not bear false witness against thy neighbor." God Save this Honorable Court.