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Texas Abortion Ban Creator Takes Aim at Marriage Equality in New Brief

Jonathan Mitchell

The mastermind of the Texas abortion ban has invited the U.S. Supreme Court to overturn or at least severely undermine key LGBTQ+ rights decisions — the ones that struck down sodomy bans and established marriage equality.

Lawrence v. Texas, the 2003 ruling that invalidated all remaining state antisodomy laws, and Obergefell v. Hodges, which in 2015 held that same-sex couples have the right to marry in all states, were just as “lawless” as Roe v. Wade, the court’s historic abortion rights ruling, Jonathan Mitchell and coauthor Adam Mortara write in the brief.

Mitchell, who crafted the Texas law that bans abortion after six weeks of pregnancy, and Mortara filed the brief in an abortion case the court is slated to hear December 1. The case involves a Mississippi law that bans abortion after 15 weeks of pregnancy except “in medical emergencies or for severe fetal abnormality.” Two federal courts have blocked the law, but the state is appealing to the Supreme Court, which just today announced the date for the hearing. It is widely seen as the case that could overturn Roe.

But the right to abortion is not all that Mitchell and Mortara want to see taken away. Their brief refers to “court-invented rights to homosexual behavior and same-sex marriage” and says, “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”

“The right to marry an opposite-sex spouse is ‘deeply rooted in this Nation’s history and tradition’; the right to marry a same-sex spouse obviously is not,” they write. “This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey [a later ruling that upheld Roe] in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.

Two of the court’s most conservative justices, Clarence Thomas and Samuel Alito, have already said they would like to see Obergefell overturned. Amy Coney Barrett, Donald Trump’s final appointee to the Supreme Court, has criticized the Obergefell ruling. They are part of a 6-3 conservative majority on the court, joined by Trump appointees Neil Gorsuch and Brett Kavanaugh and Chief Justice John Roberts, a George W. Bush appointee.

Roberts and Gorsuch are not always predictable, however. Roberts joined the court’s three liberals—Sonia Sotomayor, Elena Kagan, and Stephen Breyer — in voting to keep the Texas abortion law from going into effect, but they were outnumbered 5-4. (The court did not rule on the merits of the law.) Gorsuch authored the court’s ruling in Bostock v. Clayton County last year, decreeing that employment discrimination based on sexual orientation or gender identity is sex discrimination and therefore illegal.

Right now there is no case seeking to overturn Obergefell or Lawrence making its way through lower courts, but Thomas and Alito have basically invited a challenge to Obergefell. LGBTQ+ legal experts have noted the need to be vigilant should such cases arise.

Mitchell is a former law clerk for Thomas and is a former Texas solicitor general, supervising and approving all legal appeals for the state. Now running his own law firm in Texas, he helped state legislators draft the abortion ban, which empowers private citizens to report abortions that run afoul of the law. Mortara is also a former Thomas clerk and is now a lawyer in Chicago and a lecturer at the University of Chicago Law School. Both have ties to the Federalist Society, an ultraconservative legal organization, and Mitchell’s law firm has worked for the Alliance Defending Freedom, a right-wing legal group that has handled many anti-LGBTQ+ cases.

In November 2020, Justice Alito gave a speech at the virtual Federalist Society convention where he made plain his desire to overturn Obergefell. "One of the great challenges for the Supreme Court going forward will be to protect freedom of speech," Alito said, after posing the freedom of speech opposite of the rights of LGBTQ+ communities. "Although that freedom is falling out of favor in some circles we need to do whatever we can to prevent it from becoming a second-tier constitutional right."  

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