Mary Anne Case, "Fifty Years of Griswold v. Connecticut"
It's birth control's fiftieth birthday! Professor Case will be discussing what Griswold—the landmark case that began the process of invalidating legal prohibitions on the use of birth control—looks like in the aftermath of Hobby Lobby and Obergefell.
Mary Anne Case is the Arnold I. Shure Professor of Law and convener of the Workshop on Regulating Family, Sex and Gender.
Presented by the Law Students for Reproductive Justice and the American Constitution Society on November 11, 2015.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: Please help me in welcoming Professor Mary Anne Case, who is the Arnold I. Shure Professor of Law here at the University of Chicago. While her diverse research interests include German contract law and the First Amendment, her scholarship today is concentrated on the regulation of sex, gender, and sexuality, and on the early history of feminism. Today, she will be discussing the landmark case Griswold v. Connecticut on its 50th anniversary.
Mary Anne Case: Thank you very much for having me here. Let me first of all, as the convener of the workshop on Regulating Family, Sex and Gender, putting into an extra plug not only for today's workshop, "Attracting Religion" may not be the sexiest title. I keep telling her she should have called it Zombie Catholic hospitals because that is in fact what she is discussing: the way in which Catholic hospitals either on merger or on sale place restrictions that compliance be in accordance with Catholic guidelines. I've already notified not only LSRJ but Students for Life might be interested. I hope that's all the relevant groups. I want to just generally put in a plug for the workshop which is open not just to the small number of students taking it for credit, but to any student in any week that is of interest to them. And also put in a plug for the December 2nd workshop, which will be by Chiara Bridges on class, race, and the reproducing body, so of interest to probably the aforementioned groups plus also who knows who else.
Mary Anne Case: So today I'm talking on the occasion of the 50th anniversary of Griswold and I contemplated, um, in a nod to Justice Holmes calling this talk, "Fifty Years of Griswold." Three generations of imbeciles is enough which my UVA colleague, Ted White, used to always ask enough for what. And what 50 years of Griswold has obviously not been enough for is for Griswold to be set a law. Now that's something I have been unfortunately aware of for most of my career. When I was a litigator at Paul Weiss, colleagues of mine were interviewing into the Reagan Justice Department. And the George W Bush, the George Bush Senior Justice Department, and instead of being asked as who would have thought, what do you think of Roe v Wade with, I think it's a fine decision being disqualified. They were instead being asked about Griswold v. Connecticut, and any view that Griswold was unequivocably correctly decided or even arguably correctly decided would mark them as what was in the parlance then
Mary Anne Case: And I still think now, nominated a squish. That is to say not a reliable, conservative legal thinker of the sort the Reagan Justice Department was looking for. I'm not going to be talking about Griswold's being endangered in that sense today, but I'm going to talk about Griswold in light of two more recent cases that take up separate lines of Griswold and that's Obergefell together with Windsor or the same sex marriage cases on one hand and Hobby Lobby, uh, together with the half dozen or more follow on cases about the ACA contraception mandate that the Court just accepted certain last week. And to try and get through the, you know, more general general jurisprudential remarks quickly enough so as to say something about these cases that the Court has taken cert on more specifically at the end. But very briefly, for those of you who haven't taken the relevant constitutional law courses, Griswold was of course, a case saying that it would be unconstitutional to criminalize the use of contraception by married couples, and the two parts of that opinion, the part about contraception, and I will argue about sex, and the part about marriage, have were disaggregated and then have descended to us in two lines of cases.
Mary Anne Case: One hobby lobby on the one hand and a Obergefell on the other. So very briefly for, you know, again, those of you studied the relevant courses, will be familiar with these cases on Griswold as a follow on to a case called Po v. Omen where, uh, Justice Harlan wrote what was then a descent which became a concurrence in Griswold. After Griswold, the right was extended to single people in Eisenstadt with the following, oft quoted lines: "It's true that the right in Griswold, the right of privacy in question inhered in the marital relationship. Yet, the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matter so fundamentally affecting a person as the decision whether to bear or beget a child."
Mary Anne Case: The right to contraception was then extended to minors and population services, but I want to focus on this notion that Griswold is about the decision whether to bear or beget a child. I have been seeing since the early 1990s in a piece on gay rights I wrote for the University of Virginia Law Review that if you do what Justice Scalia says should be done in substantive due process cases, that is to say, look at the narrowest history and tradition that is at issue in any given case. So in a subsequent case, he said, it's not about the right of fathers or even unwed fathers, but about adults who had fathers in the face of the opposition of the marital family to have access to their adulterous offspring. So if one were to do that, he did the line up Griswold, Eisenstadt, Carrie, and a case called Stanley v. Georgia which is about obscene material, obscene material that could not be distributed.
Mary Anne Case: But if you have it in the privacy of your home and you're jerking off to it, you're protected from criminal prosecution. And I use the term jerking off because I'm going to try since this is a podcast of the reading, the four letter word beginning with f, which I think that these cases amount to and right to. If you are applying a Scalia methodology on the narrowest history and tradition is not about the choice to bear and beget a child, after all a married couple can avoid bearing and begetting a child simply refraining from engaging in vaginal intercourse, protected or unprotected, if they can't get access to contraception? Therefore, one would think that the next logical case is of course Hardwick, and that's what he who argued Bowers actually thought: that the right to privacy is about to right to make private, intimate decisions not necessarily in the context of a relationship, whether marital or quasi-marital or even beyond the one night stand.
Mary Anne Case: Bowers was about a one night stand, but that didn't happen. Right? And one of the reasons it didn't happen was that they were, one of the things the Court said that it wasn't happening was there's no relation between gay people and family, between homosexual relations and family. But of course in the era of same sex marriage, that is absolutely no longer the case. Gay people and family are thought of very closely together, but you will notice that in both Obergefell and Windsor, you see what kind of folks that I wrote about in the 1990s. Who are the gay couples who win? They are couples one of whose members is dead. So you can think about the wonderful relationship between the couple without getting hung up on all the potentially icky sex. Windsor was a widow and the fact that she was a widow with central to her claim; she was seeking for exemption for state taxes.
Mary Anne Case: Obergefell was a widower and that fact was central to his claim. All he was seeking was to be listed as a surviving spouse on his husband's birth certificate. So there is this sense that you know what I'm calling the right to have sex has unfortunately not been indicated. And if we look at Obergefell, some of the romance of marriage that had disappeared in subsequent Supreme Court decisions. For example, on the abortion decision in which the question was do marry women have to notify, it was previously decided that they did not have to give your husband control rights. They didn't even to tell their husband that they were having an abortion. If you read about what the court says about marriage in that opinion, marriage is not a safe space. it's a potentially in site of risk for women where they can be battered and threatened or in fear.
Mary Anne Case: But with Windsor and Obergefell, the romance of marriage is back. And I used to term romance advisedly, and even more the dignity of marriage is back. Both of these include and the sacredness of marriage. So, uh, again, uh, I'll read a paragraph and I'm sure is familiar to all of you who've ever studied Griswold. "We deal with a right of privacy older than the bill of rights, older than our political parties, older than our school system. Marriage isn a coming together for better or for worse, hopefully enduring and intimate to the point of being sacred. It is an association that promotes a way of life, not causes a harmony of living, not political faiths, the bilateral loyalty not commercial or social project. This association for as noble a purpose as any involved in our prior decisions." Now I have to say the thing that most surprised me about the Obergefell decision
Mary Anne Case: was that the paragraph in it that had my must whole-hearted assent came from footnote by Justice Thomas. The footnote was the following: "Majority also suggests that marriage confers nobility on individuals. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more "noble" then another. The suggestion that Americans who choose not to are inferior to those who decide to enter such relationships is specious." Now, I suspect Justice Thomas was not thinking about the unmarried, potentially cohabiting couple in Eisenstadt or the one night stand in Bowers but was maybe thinking of people who take a vow celibacy for religious reasons, but I absolutely agree with him. Whoever he was thinking of. The notion that marriage makes you noble is dangerous. Even more dangerous is a concept that we already see in Griswold which is the concept that the word "dignity" or the word "dignified" also is used, um, where Justice Douglas in the majority opinion talks about dignifying the right in Pierce v. Society of Sisters.
Mary Anne Case: Um, and I'm blanking on the name - the you can teach German to your kids case. Meyer v. Nebraska. Those rights were dignified and similarly marriage and the right to privacy within marriage has been dignified. That paradoxically puts a lot of control in the hands of the State rather than no control in the hands of the state if marriage is the thing or if the state is the one who dignifies marriage in this way, and marriage provides dignity. I'll also note that, um, you know, one of the things that people have commented on, you know, the line of decisions is that there was always someone outside the pail, right? So, uh, in Poe it was, well, just because we are going to let married people use contraception doesn't mean that we can't prosecute fornication for example. And then later on it became gay people.
Mary Anne Case: Obergefell is in line with this and so suddenly the people outside the law, or at least outside dignity, nobility, and full citizenship are the people Justice Thomas is sticking up for. Those who do not because they choose or because they cannot to marry. And I want you to hold in mind this idea of, of insiders and outsiders. And although as Justice Kennedy keeps reminding us that the circle keeps expanding of the people who have dignity and whose rights we establish. There does seem to be this tendency to reinscribe, uh, somebody, uh, as one down so we can think of marriage as status. It's a status in a descriptive way in the way corporations are a status. It's a status in the sense of meaning one up, and it's that latter sense of marriage more than the former that I think has been reinforced in the line from Griswold to Obergefell. One other line of cases to be focused on is the cases that highlight whether rights or merely negative rights.
Mary Anne Case: And so what Griswold says is you have the right to use contraceptives without being criminally punished. Obergefell is unusual in that it as the dissent points out, um, to the extent that it is a substantive due process and not an equal protection decision extends positive substantive due process rights. You have a right for the state to recognize your relationship. It's a matter of equal protection that makes perfect sense. If the state is in the business of providing a marriage licenses and rights and benefits for marriages then giving them to some couples and not to others needs to be justified, especially if it's a, as the ban on same sex marriages, sex discriminatory, discriminatory against the historically disadvantaged group of gay people, discriminatory with respect to a fundamental right such as marriage. But Obergefell was of course not substantive due process, not an equal protection decision.
Mary Anne Case: It was more or at least largely a substantive due process decision not limited to the equal protection component, but when positive rights to contraception and abortion were asserted, they lost, right? So I'm sure you know the cases where the court said with respect to abortion rights that it isn't required for government even when it generally provides medical services to poor women that it provide abortion services. And there's a sense in which Hobby Lobby may be seen as the descendant of those cases because there is the unfortunate tendency on to say, well, you know, you may have a right to use birth control but no one is stopping you from using it or just saying you can't get it with our money. Now, "our money" is an interesting conception when we're talking about benefits with respect to employers and their employment. The discussion of how all kinds of benefits in particularly those attached marriage, but also those attached more general to healthcare got associated with employment status is well beyond the scope of this talk.
Mary Anne Case: But I will signal it as potentially relevant. We'll also say however, that the way in which the marriage components of Griswold and the birth control components of Griswold had had different fates in the polity as well as the courts is worthy of consideration when I say, you know, Justice Scalia connecting the dots, what you should be seeing, is a right to have sex. Um, and when people like Sandra Fluke started talking about their need for financial assistance with birth control and the injustice of excluding birth control from an otherwise comprehensive health services plan. People like Rush Limbaugh started describing her as a slut. Started describing her as someone who just wanted to have sex on the government dime. Huckabee followed in that line precisely, don't eat sugar to help us with our sexual activity. It saddens me that what used to be a fairly unified movement for sexual liberation, or it could've been a unified movement for sexual liberation, has been siloized into here's the LGBT silo, here's the reproductive rights silo, and that's further subdivided into the sometimes not speaking groups of the abortion rights silo, the access to contraception silo, and the new reproductive technologies silo. I have, you know, in the same way as I connected that similarly to Justice Scalia, I connect the dots similarly to a Joseph Ratzinger, aka Pope Benedict XVI, who says all of the, of the pope who, the ex pope, Pope Emeritus I think is what we're supposed to call him.
Mary Anne Case: Seriously. These things really do have something in common, the right of the individual, married or single, to determine all of these things about his or her life. Another thing that has Hobby Lobby as the descendant of Griswold v. Connecticut is that famously it was the Catholic lobby in Connecticut and it was the strength of Catholics as a voting group in Connecticut that made Connecticut an outlier among states for having contraception. And what's happened over time that many religions scholars, including me, have written about, the way in which most, not all, Robbie George at Princeton is still saying we've got to resist publicly, uh, public rights for, for example, gay couples. Most proponents of conservative religious values, whether that be against same sex marriage, against gay rights, more generally, against abortion, against contraception more generally or even against the new reproductive technologies.
Mary Anne Case: Even more generally, that is to say Catholic churches as opposed to artificial means of conception, e.g. In vitro fertilization, as it is to artificial contraception. On all of those groups are, um, instead basically engaging in what I've been calling elsewhere the new feudalist right? They are asserting not their, ... we would still, I'm sure, like to have the general law of the state or the federal government in line with their views, the fallback position that they are more clearly and often asserting, having lost the former debate, starting with Griswold, is to say no, what we need is our own space under our control. So let me now turn to you the way in that space is being controlled by Hobby Lobby one the hand and by the religious organizations, Little Sisters of the Poor, a cadre of colleges, including Wheaton and Notre Dame.
Mary Anne Case: Notre Dame I don't think what's ready for search, but I met a few of you, a paraphrase of the line from the Notre Dame earlier cert brief because I think it says a lot. So just to recap where we are with the, with the contraception mandate: the Affordable Care Act said that preventive healthcare was part of healthcare, left it to regulation what constituted preventive healthcare, regulations specify that contraception, including free access to all available forms of contraception, was part of a preventive healthcare for women, and carved out, perhaps unwisely, an exemption for churches. I say perhaps unwisely because if you look at the history of protection for free exercise, starting again with a case called Sherbert against Werner, which is about unemployment insurance, the Court is more likely to provide religious exemptions to new groups when they have been provided to other groups in the past. In Sherbert v. Werner
Mary Anne Case: the woman who sought out unemployment compensation couldn't work on Saturdays for religion and she said, and she could point to the statute that gave Sundays an unquestionable right not to work on their day of rest. So partly because of establishment clause issues, partly because of potential issues of fairness and equal protection, some religious groups will get an exemption, the argument becomes stronger. It also becomes stronger in on the theory that this is a system that can tolerate tensions. Now there comes a tipping point. It may be able to tolerate few exemptions but not a large number of exemptions. That's something to be considered. Hobby Lobby gave a non-religious employer, in the sense that Hobby Lobby is not in any sense of religious corporation, and it was the corporation that was the claimant in Hobby Lobby on an exemption because of the beliefs of those who controlled it.
Mary Anne Case: And that's part of what I mean when I reference what I'm calling the new feudalism. The new feudalism is the notion that more and more rather than less and less, our rights are a function of our hierarchical attachments to our state, to our employer, to our family members, like our spouses, our parents. So the following case from hobby lobby, that is in scare quotes " my favorite" is a legislator from, I'm blanking from the state or The state legislator who together with his wife have adult, but under 26 year old, children who are under the Affordable Care Act are now insurable under their parents' health insurance. And he has said is look, my relationship with my kids to me is like a relationship with Hobby Lobby's employees to it. Because they are getting insurance through me, I get to say that I don't want them to have contraception because I opposed it and you can use me on as a means of providing something that I have a religious objection to.
Mary Anne Case: This I, I've never before talked about. I've talked about this case in many contexts, but usually with law professors most of whom are too young to have children in a relevant age group. I see that from the faces, the podcast will not reveal the faces, I can see by the faces of all you folks, many of whom may fall in the category of insurable on your parents health insurance, the donning realization that your parents may get to decide exactly what kind of health care you get access to based on their beliefs. That case is still in litigation. Now, the cases that the court has just taken cert on do not involve the up-down with an issue in Hobby Lobby because as I understand it, and I haven't looked at the all seven or eight of the cert petitions and all of the relevant parties in them, but the overwhelming majority of the parties are exempt religious organizations in the sense that no one is doubting that their objection to providing directly contraception or abortion services should under the current regulations be honored.
Mary Anne Case: The question is only whether they can be obliged to fill out paperwork that says so, and whether then their plan providers will then be compelled by the Affordable Care Act to provide the services that the organizations do not want. And they are again in line with what I'm calling the new feudalism asserting a really broad right that says basically, "we own these plans, these employees, these lists, and anything that flows to our employees by virtue of their being our employees is too disturbing for us not to get an exemption under the Religious Freedom Restoration Act." Now I should say that I am not a fan of the Religious Freedom Restoration Act and never have been. I once again agree with Justice Scalia and have always agreed with him since it came down that Smith, the Employment Division versus Smith
Mary Anne Case: the religious freedom restoration act was meant to live in and to the extent within Congress's power reverse was correctly decided for the same reason Reynolds, the 19th century Mormon polygamy case was correctly decided, and that's the sheer practical reason that there will be no law worth the name, if any religious objector to any governmental practice can at any time raise an objection that can only be countered by a compelling governmental interest. But that said, I was initially quite sympathetic to the claims by people like Little Sisters that they didn't need to fill out a form. I either radically misunderstood those plans or those claims have radically expanded as a result of the litigation. My initial view is, you know, you don'r want to sign a form, there's got to be a work around for that, and I thought it'd be a correct analogy was something like the longstanding practice of allowing Quakers to affirm and not swear because they had a religious objection to swearing.
Mary Anne Case: This is something different from allowing Quakers not to bear arms service of the country. It's a, in a sense a technical work around, but if that can produce a win-win solution, great. It does seem now that there is simply no win-win solution. What these organizations are saying is that their religious conscience will not be at rest unless their employees don't get what the law gives them the right to. Now I don't think that cannot possibly be a workable solution. I'm very interested to see what the Supreme Court does with that. I have before anybody asks me in questions and answers, absolutely no prediction what the Supreme Court is going to do with it because it's possible that the Affordable Care Act
Mary Anne Case: as interpreted by RIFRA, that is to say, RIFRA metaphysically amending the Affordable Care Act and all other statutes may provide some sort of remedy, but it has to be a remedy short of not giving the employees their due. I'll stop there and open it up for questions, comments, expressions of outraging puzzlements. Anybody?
Question One: So the Satanic Temple is currently pursuing litigation in Missouri under the Religious Freedom Restoration Act to attempt to get their own waiver of sorts for women who are seeking to get abortion access without intervention. What do you think of this kind of tactic to throw the book back at the people who have written that?
Mary Anne Case: First of all, the people who wrote the book were the Congress of the United States and the fascinating thing about RIFRA, and again I have always said RIFRA was a bad idea for reasons having nothing to do with contraception, abortion, and sexual rights, anything like that. Again, for the reasons very clearly articulated by the Court of Rounds, by Scalia and Smith, by the Ruth Bader Ginsburg dissent in Hobby Lobby. It's limitless. So the people who, who gave us this were Congress, and the people not all on the political right or religious barricades, including the ACLU, you know, what some people used to call wet liberals who thought, oh, religion, it's just sweet fuzzy, nice thing.
Mary Anne Case: Let's give it more. But I will also say that the problem with the Satanic Temple case is a little like the problem with some of the people who suddenly discover that God requires them to smoke marijuana when they think that that will allow. And I'm not talking about Rastafarians who have a historical basis for potentially claiming that. I'm talking about the kind of people that show up in the courts, hypothetical prisoners, right? God requires me to have a steak dinner every night accompanied by a caviar appetizer and champagne not withstanding that I'm a prisoner. I mean, there aren't such people, but I mean I think it would be a very interesting and important test case if there were people who could plausibly claim a sincere religious belief along the lines of the Satanic temple is arguing for. Given that the one thing every court is willing to test religion for is sincerity, and given that, as far as I can tell, what you described is exactly right. This is a tactic; not a sincere expression of religious belief, I'm waiting for the right test case. Yeah.
Question Two: To follow up on that though, the indication in Hobby Lobby, the Supreme Court did seem to kind of indicate that it wasn't the Court's place to question the sincerity of belief to a certain extent or to the correctness of a sincerely held belief, and so I guess I'm curious, following up on that idea that if the Satanic temple can come up with somebody who can go into court with a straight face and square on a not-Bible. That this is a sincerely held belief.
Mary Anne Case: That's what I was trying to suggest for the first questioner. That Is to say what I think that merely swearing it is not nearly enough. And you used another word that I'm now not remembering, but let me just say a little bit about that. So sincerity is what matters, but it doesn't matter the to the general worldview of any group. It can be your own personal, sincere belief, which is why there is a way needs to anarchy, right? So you know, I'm working on a piece I'm tentatively calling "Kol Nidre." For the non-Jews in the room, even for some of the Jews in the room. I am not a Jew, but I only recently learned this: kol nidre means "all vows." One of the things that Hobby Lobby and RIFRA suggest than any vow you take, just you personally, between you and God, "I swear I won't do x", now has the equal force of anything that a more systematic faith tradition called upon people.
Mary Anne Case: I'll do my favorite, again scare quotes, "case" along these lines is I would say Title VII religious accommodation case involving a sincere religious opponent to abortion who swore a vow that until abortion, until Roe v. Wade is overturned, she would wear a button with a dismembered fetus on it to work. To which the response of the Court and her employer was, okay, fine, we accept that, but you can cover up the button because it disturbs your coworkers, not just the coworkers who support abortion, but they don't want to see a giant dismembered fetus every time they see you. You know, all that does is allow the next person to come up with a more strategic, better vow, and you may say, well, how is that any less of a tactic then what the Satanic Temple is doing? But again, we have this notion of faith being something that requires sincerity and not behavior.
Mary Anne Case: It requires belief and not act. Again this shades off into discussions of what kind of secularism we have. We have a Protestant secularism that values faith over works, faith over systematic commitments, but I'll just represent to you that someone with beliefs like that of the Satanic Temple, like that of the would be marijuana user, is going to be much more heavily scrutinized both because of the eccentricity of those beliefs and the fortuitous benefits, from those beliefs more than some. I mean, for example, when, when the Court allowed a RIFRA exemption for hallucinogens, it placed what one may see as an inordinate amount of weight on the fact that it was the kind of hallucinogenic that could also make you nauseated and vomiting so no one without a sincere religious belief would likely choose it unless God was requiring them to consume it for a religious high.
Question Two: So, I mean, I mean, I guess the only, the, the, the question that I would have, and it may just be you, I don't know everything, ... It seems like if they're going to be consistent, then I can believe anything I want and say this is what I've got.
Mary Anne Case: But so basically you have to believe it.
Question Two: You do have to play well, but if you don't have to have any evidence for it. That would mean in the Hobby Lobby case, in the hobby lobby case, there's a sincerely held belief that this is an abortifacient and science be damned kind of thing. Um, and so
Mary Anne Case: I'm curious what you see as the analogy for the Satanic Temple.
Question Two: I'm not positive. I guess the question that I have is, do you just think that they're going to be more heavily scrutinized because we may have this Protestant or religious secularism in that we have an idea of what a sincere belief should look like and so long as you fall into that faith tradition, we're okay with going along with it and we're going to scrutinize people?
Mary Anne Case: I mean he does obviously descriptively easier for people whose beliefs are part of one recognized religious practice. But again, I think it's overdetermined. With respect to, you know, I have accepted looking for the right test case, and I'm, I'm looking for. If I were an OB/GYN and also a religious believer, two counterfactuals, I would apply the belief that I do in fact have, what I call feminist fundamentalism, that is to say a deep, unshakeable, unwavering commitment to the equality of the sexes and to the repudiation of fixed notions concerning roles and abilities of males and females. And say they are, just as the OB/GYNs who don't want to engage in new reproductive technologies at all or the OB/GYNs who don't want to associate with lesbian couples have asserted a religious objection. I would say, I don't think people who are going to bring children, especially girl children, into a world in which they are subordinated, should be assisted in having children.
Mary Anne Case: I think Quiverfull families, for example, should not be assisted in having children, and I have a sincere religious objection to being a part of their reproductive project. That seems to me, if there were someone to make that assertion, easier to sustain then, again as a purely contingent, factual matter, not as some matter of general principle. What I've so far seeing coming out of the Satanic Temple. If you match that with the Satanic Temple's desire to place a statue of Baphomet on the grounds of a state building where there are other statues. That seems to me much harder for a Court to get around, much easier to accept then so far what I've seen with respect to the reproductive rights claims of the Temple. And yes?
Question Three: How substantive due process-y do you think the marriage line actually is? So like if a state decided we're not doing marriage licenses at all, do you think the court would say no you must recognize marriage?
Mary Anne Case: Still have more about what it, what you mean by saying the Court would not issue marriage licenses at all.
Question Three: So if the state of Alabama passes a statute that says we're no longer in this marriage license business.
Mary Anne Case: But it's not a question of the licensing business. It's a question of whether the state is going to give some status, not necessarily one of status, but of corporate status to couples. And, and so my... Have any nation that project up again since the 90s, the analogy between marriage and the corporation just as it will be very different, difficult, although not possible and certainly not unconstitutional for the Court to get out of a business of registering corporations given how much of the law is built around corporate status. Now, what we would have to do to undo that is well beyond something I think Alabama is willing to do or inflict on its citizens.
Mary Anne Case: It's it and that's what it would have to do. It would have to do something along the lines of what I'm a graduate of this law school, Margo Fineman, legal scholar at Emory suggested, which is that in a book called The Neutered Mother, the sexual family and other 20th century tragedies, she said that the real mistake was that instead of looking at the primary family relationship being parents and children or mothers and children, when we look at what sexual couples as the primary relationship, and the state should get out of the business of treating sexual couples in anyway as special, just send them back to the ordinary law: contract, property, criminal law. But that's a wonderful thought experiment. Very difficult thought experiment to carry out.
Question Four: So in his concurrence in Griswold, Harland says that he does not suggest that adultery, homosexuality, fornication, and incest are immune from outcry. My question is whether the cases represents like an ever expanding circle or whether it's principle in certain directions because one of those things to be different from the other ones.
Mary Anne Case: Which one seems different?
Question Four: Incest.
Mary Anne Case: Well that's one of the ones we haven't gotten to yet.
Question Four: Does this reasoning have...?
Mary Anne Case: That's the line that I had in mind when, and it's an original, the concurrence, but that's just see what I said in quoting Harland. Obergefell may be the end of that line in the same, so even the same way as Bowers was an inappropriate end to that line in my view because the logical extension would be to homosexual sex. So Obergefell is again, a case about gays, a case in which the claim by the gay person wins, but it makes it about marriage with a new group of outsiders.
Mary Anne Case: Yeah. The unmarried are swirling and gnashing their teeth in Obergefell in the same way as gays and unmarried sexually active straights were in the concurrence you read. Now with respect to incest, I don't know how much you know about the laws concerning incest. But incestuous marriage is prohibited in every single state. That is to say if you are, there was some relationship, a family relationship that you can have someone that will preclude you from marrying them. It's usually an ancestor-descendent and sibling. But not all states criminalize adult sexual incest. Now part of that is a an accidental effect of what happened when the sex laws were reformed so as to remove a whole lot of perspective of the late 20th century, old fashioned sexual crimes, including for example consensual sodomy in many states, but it is legal in many states to have sex but not to marry and have sex with, but not to marry an adult to which, to whom you are closely related. And put that in your calculus and when you're asking what Martha Minow says is the quintessential lawyers question which one of these things is not like the others.
Mary Anne Case: Now, which one of these things is doing its own thing. Is incest just next on the list? And also what does it say about a group that the law is prepared to tolerate sex but not tolerate marriage which was the case for interracial couples in Loving, which was the case for gay couples until Obergefell, which is still the case for incestuous couples. And again, I have no production what would happen or no prediction, what should happen if I'm Scalia connecting the dots if an adult incest case comes before the Court. I suspect that the Court will be less sympathetic, but connecting the dots, I'm not sure it should be. Connecting all the dots, including to the extent that this is a substantive due process issue, a process of counting what the rest of the states do and tolerate having done. Again, adult incest is not everywhere criminalized.
Question Five: I know the specter that often gets raised after Obergefell and gay marriage, is polygamy next? So I'm wondering, I guess, if we're headed in the direction of like marriage is the best thing. I mean, I have to say there are lots of, lots of ways to avoid that should the Court have liked it to. You know, almost an equal protection claim, not any, but certainly sex discrimination. I've been arguing for again, since the 90s that sex determination was the way to go for same sex marriage for all kinds of reasons. But one of them is, if you want to stop the slip and slide down the slippery slope for polygamy, which you may not be. That's a good way to do it because there is something again. For reasons that should be familiar to every University of Chicago person, it's in my contract that I have to use the word "efficiency" once in every talk because it's efficient.
Mary Anne Case: What marriage does it takes as a default matter to people and they go, I, you and you, me as the default person for all kinds of things to inherit half my estate, to make medical decisions, and you can still contract around that now in a way that you couldn't, you know, a hundred or 200 years ago. But that only works with two. With three, to take the argument that worked best for the, for the gay couples, which is, you know, imagine one of you is in a hospital bed and the other isn't even going to be admitted to see you. Let alone make medical decisions. Now imagine polygamy. Two spouses, one of them says all heroic competitors, the other one says pull the plug. You are already not in the realm of default roles. You're in the realm of set default roles, but it isn't as simple as with two, so for the patients you reasons setting the number of people in a marriage at two works, setting it at more than two is harder to argue for. But in the aftermath of Obergefell, I see no reason why at least the Browns of Sister Wives fame, who are litigating simply not to be criminally prosecuted for their announcement of polygamous intent.
Mary Anne Case: That is to say they're not engaging in what's with the criminal law defines traditionally as bigamy. They're not... The man in that relationship is not trying to get two marriage licenses one for each of two for his four wives. He's got one marriage license at a time. He simply announcing, and for religious reasons, that he is married to more than one woman. I think he wins after Obergefell in a way that was more questionable before Obergefell. So I think Obergefell gave heart to polygamists to want state recognition for their marriages. Nothing but encouragement.
Question Six: Insofar as sort of conflicting rights are inevitable, then isn't there, isn't a reason to believe that sort of the status quo that we've reached post Hobby Lobby is sort of exactly where we want to be in that basically the settlement that we've reached is we're going to dismantle all obstruct, you know, uh, all prohibitions on obtaining abortions or on obtaining contraceptives as in Roe or Griswold. But if particularly if you have a religious objection, we're not going to require others to facilitate your pursuit of those freedoms.
Mary Anne Case: I mean, I don't see how we've reached that as a settlement. I mean, I think the last thing you can say about the aftermath of Hobby Lobby is that anything is settled. I mean, I'm not even clear that Hobby Lobby itself is settled, right? I mean there were literally hundreds of cases and I don't see how one settles them, right? I mean, you know, the middle of the slippery slope may very often be the right place to be for any given issue. I don't see how one claws a foothold in the middle of a slippery slope. In pre-Hobby Lobby, we had reached a very different sort of settlement in that even specifically Catholic organizations had been providing contraception under state and local decisions to their employees without complaint. One of the things that happened in the aftermath of Griswold is that the Catholic Church stepped back. The Catholic Church is now pressing forward and with company.
Mary Anne Case: So just again in the same way as descriptively, I said I don't see what claim the Satanic Temple makes but you can show me I'm wrong. Even more emphatically, I would say descriptively, the very last thing we have now is anything that can be described by anyone as a settlement. I'm not even going to get into whether it's a satisfactory settlement. It is simply not settled and I come back to it's not settled. And the only way to settle it is I think is the way that Scalia set forth in Smith: either the law applies to everyone, no exceptions wherever it goes or there is anarchy. If you consider anarchy a settlement, that's an interesting philosophical question.
Host: I think we're all out of time so thank you again for coming. Please help me in thanking Professor Mary Anne Case for coming as well as the American Constitution Society for sponsoring our event.
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