CNN’s Fearmongering on Interracial Marriage and Roe

CNN blasted out a push notification on Wednesday morning promising to explain “what overturning Roe v. Wade could mean for the future of same-sex and interracial marriages.”

“It’s impossible to wall off reversing Roe from landmark marriage and contraception rulings” reads the headline of the article, which was written by CNN Supreme Court reporter Ariane de Vogue.

Some progressives, including Representative Eric Swalwell (D., Calif.), have been making this argument since the leak of a draft opinion from Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization that would do away with the framework established by Roe and Planned Parenthood v. Casey. On Tuesday, Swalwell tweeted that “the Republicans won’t stop with banning abortion. They want to ban interracial marriage.?”

In the text of the piece, de Vogue attempts to provide evidence for Swalwell’s claim that overturning Roe would represent a serious threat to Supreme Court precedent (Loving v. Virginia) that protects the rights to interracial marriage.

“They [critics of the draft] believe that if Alito’s opinion is ultimately rendered, it will represent an opening salvo in a push to target other rights grounded in privacy and liberty. It will also destabilize the law by rendering the legal doctrine of stare decisis — the notion that courts should follow their precedents even if they disagree with them, to protect the cohesion of the law — a dead letter,” states de Vogue.

In other words, the overturning of one precedent represents a threat to all previously established legal rules and frameworks.

Jonathan Adler, a professor at Case Western University and libertarian legal commentator, dismissed this notion.

“The idea that this opinion, as written, renders the doctrine of stare decisis to be ‘dead letter’ is simply absurd. It’s hard to imagine how anyone who has actually read the draft opinion, and who is familiar with how the Supreme Court has handled precedent throughout history, could make such a claim,” Adler told National Review, before going on to say that “it is simply not true that when the Court overrules a decision it casts into question all of the prior decisions upon which the overturned precedent relied.”

Many of the Supreme Court’s most well-known — and well-regarded — decisions, including Brown v. Board of Education, which ended “separate but equal” racial segregation in public spaces have heralded the end of a prior precedent. In recent years, many progressives have called for the Court to overturn both Citizens United v. Federal Election Commission and District of Columbia v. Heller, targeting precedents set on political speech and the Second Amendment.

Drawing a more specific connection between Loving and Dobbs, de Vogue quotes Justice Sonia Sotomayor, who noted during oral arguments in Dobbs that the Supreme Court had previously found that there are “personal decisions that belong to individuals and the states can’t intrude on them.” Sotomayor said that “the right to choose who they’re going to marry” had been “discerned from the structure of the Constitution,” rather than found in its plain text.

“For instance, in 1967 the court decided Loving v. Virginia, which involved the right to marry a person of a different race. The court held that the ‘freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.’ The court relied on parts of Loving when it decided Casey,” writes de Vogue.

She then brings in CNN legal analyst Steve Vladeck, who asserts that “Roe wasn’t decided in a vacuum; it’s part of a larger understanding of the Constitution that recognizes a right to privacy in text that doesn’t expressly identify it.”

“If there’s a majority of justices no longer willing to recognize such a right in the context of abortion — indeed, who believe the court should never have recognized it — then that calls into question those other rights, as well,” added Vladeck.

Adler was equally unimpressed by this line of argument.

“Unlike Roe and Casey, subsequent precedent has not merely built upon Loving, it has fortified the underlying reasoning by expanding and hardening the constitutional prohibition on racially discriminatory classifications,” said Adler. “Even if the Due Process elements of Loving were eviscerated, the Equal Protection rationale would remain as robust as ever.”

Adler said that “the big picture point is that the opinion embraces Washington v. Glucksburg,” which came before the Court in 1997 and resulted in a unanimous determination that the Due Process clause of the 14th Amendment did not guarantee a right to physician-assisted suicide. The Court concluded in Glucksberg that the state had a legitimate interest in medical ethics, discouraging discrimination against disabled and terminally ill persons, and the preservation of human life. According to Adler, the invocation of Glucksberg “requires a more finely grained analysis focused on the specific right asserted, and not mere invocations of broad and amorphous concepts like ‘privacy.'”

A Dobbs decision that touched or weakened one leg of Loving‘s holding — although it’s worth noting that Alito intentionally differentiates it from Roe and Casey in his draft — would do little to threaten its holding that laws banning interracial marriage are unconstitutional.

“The claim that any justice on this Court would countenance overturning Loving is preposterous.,” continued Adler. “I don’t know which is worse, that some people would make such a cynical claim for political purposes, or that some people learned in the law actually believe it.”