Barrett showed her hand by affirming mixed-race marriage but not same-sex marriage and birth control, SCOTUS expert says
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Whether it was Obergefell v. Hodges, the case that granted same-sex marriage rights nationwide, or Griswold v. Connecticut, a case regarding birth control, Supreme Court nominee Amy Coney Barrett refused to give opinions on how those cases were decided, citing the fact that they may come before the court again.
But when asked Wednesday about Loving v. Virginia, the case that declared mixed-race marriage constitutional, Barrett did affirm the case was correctly decided — and for a debatable reason, Steven Mazie, a Supreme Court correspondent for The Economist, says. Barrett based her reasoning solely on the previous decision in Brown v. Board of Education, which outlawed school segregation.
But while Brown's decision stemmed from the 14th Amendment's equal protection clause, Loving stemmed from it and the due process clause. "So there is no sound reason why she can affirm Loving ... but decline to opine on gay rights," Mazie said.
Brown v. Board was based *only* the Equal Protection Clause: the idea that separate schools are inherently unequal. The Court explicitly declined to consider whether segregation is also unconstitutional under substantive due process. 2/4 pic.twitter.com/nSS5BSXrAc
— Steven Mazie (@stevenmazie) October 14, 2020
So there is no sound reason why she *can* affirm that Loving v. Virginia was correctly decided in her confirmation hearing but *decline* to opine on gay rights or contraceptive rights.
Other than, of course, her belief that Griswold and Obergefell are up for reappraisal. 4/4
— Steven Mazie (@stevenmazie) October 14, 2020
Equal protection was a more important factor in Loving, Mazie concluded via New York University law professor Melissa Murray. But it still left him with a question: If mixed-race marriage is usually affirmed as a right of "personal intimacy," why aren't birth control and same-sex marriage as well?
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