Comparative Law 3A 2022-2023 - Supreme Court Questions and Cases, PDF

***Questions of the Supreme Court***   - 2 questions: - Does *the Fourteenth Amendment* require states to issue marriage licenses to same-sex couples? - Does *the Fourteenth Amendment* require states to recognize same-sex marriages performed in other states?  - An...

***Questions of the Supreme Court***   - 2 questions: - Does *the Fourteenth Amendment* require states to issue marriage licenses to same-sex couples? - Does *the Fourteenth Amendment* require states to recognize same-sex marriages performed in other states?  - Answer -- "yes" to both questions - Majority -- Justice Kennedy (later replace by Justice Gorsuch) - marriage is a fundamental right under the *Due Process Clause of the Fourteenth Amendment*. - 4 key reasons of importance of right to marry: - 1\. Marriage is a personal choice that reflects individual autonomy. - 2\. It creates a unique bond between two people, unlike any other relationship. - 3\. It supports families and children, and is closely connected to rights related to parenting, procreation, and education. - 4\. Marriage is a cornerstone of our social structure. - denying same-sex couples the right to marry was a violation of both principles - The right of same-sex couples to marry that is part of the liberty promised by the *Fourteenth Amendment* + promise of equal protection of the laws - *Process Clause* + *Equal Protection Clause* -- make forth independent principles - *Loving \[v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)\]* - a prohibition on interracial marriage under both the *Equal Protection Clause* and the *Due Process Clause* - first declaration of prohibition of unequal treatment of interracial couples - It stated: \"*There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause*.\" - More understanding of marriage as a fundamental right - *Obergefell* - "*No union is more profound than marriage, for it embodies the highest ideal of love, fidelity, devotion, sacrifice, and family*." - Marriage as an one of civilization\'s oldest institutions - Dissents - Justices Roberts, Scalia, Thomas, and Alito - Chief Justice Roberts -- question of legislation of same-sex marriage is on state legislatures - traditional marriage -- connection of one man and one woman - concern of judges' interpretation -- unintended results e. g. polygamy - critique of broad interpretation of the *Fourteenth Amendment* **The Obergefell** - opinion has been criticized for doing "too much and too little" - commentators -- relying on a murky theory of synergy between *Due Process* and *Equal Protection* to declare that marriage is a fundamental right (liberty) - theory is making unintentional results in the future without connection with religion **Case Study: Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022)** - the *Constitution of the United States* does not confer a right to abortion - The court\'s decision overruled both *Roe v. Wade* (1973) and *Planned Parenthood v. Casey* (1992) - giving individual states the full power to regulate **any aspect** of abortion not pre-empted by federal law - concern of the constitutionality -- 2018 Mississippi state law - ban of the most abortion operations after the first 15 weeks of pregnancy - 9 weeks before viability[^1^](#fn1){#fnref1.footnote-ref} - Jackson Women\'s Health Organization -- Mississippi\'s only abortion clinic - Thomas E. Dobbs -- health officer with the Mississippi State Department of Health - Lower courts -- prevention of enforcement of the preliminary injunctions - Based on case: *Planned Parenthood v. Casey* - Prevention of states from banning abortion before fetal viability, generally within the **first 24 weeks**, on the basis that a **woman\'s choice for abortion** during that time is protected by the *Due Process Clause* of the *Fourteenth Amendment* to the *U.S. Constitution* - Vote 6-3 - Majority (Justice Alito) -- reversing decision of lower court ruling - Opinion: decision of *Roe* and *Casey* must be overruled - *The Constitution* makes no reference to abortion -- no implicitly protected right - Guarantee of some rights that are not mentioned in *the Constitution* - X but it has to be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty" - Decision -- abortion is not part of a broader, deeply rooted right supported by past legal decisions - Ruling principle of *stare decisis* (used in previous cases) - Explanation of court's decision -- **consideration of 5 facts**. - 1\. **The nature of the Court's error** It compared *Roe* to a past case, *Plessy v. Ferguson*, which was \"egregiously wrong.\" - 2\. **The quality of the reasoning**: The Court found that *Roe* created rules about abortion that were not based on *the Constitution* or past legal decisions, and these rules were too detailed, like something you'd find in a law or regulation. - 3\. **Workability**: The Court said the \"undue burden\" standard from *Casey* was unclear and hard to apply consistently. - 4\. **Effect on other areas of law**: The Court believed *Roe* caused confusion in other important legal areas. - 5\. **Reliance interests**: The Court ruled that overturning *Roe* and *Casey* wouldn't disrupt important legal interests, like those involving property or contracts, which are more directly affected by changes in the law. - [→]{.math.inline} the Court believed there were strong reasons to overturn the past rulings on abortion - ***Dobbs* decision** - Importance to determine historical practices in protection of new rule - Court's explanation of the word "liberty" - = broad and can mean different things to different people - President Lincoln: "*We all declare for Liberty; but in using the same word we do not all mean the same thing*" - ***Washington v. Glucksberg*** (1997) case - Careful consideration of new rights - "liberty" protected by the *Due Process Clause* could end up reflecting the personal policy preferences of the judges, rather than being based on law and history - **Finally** -- ruling in *Dobbs* only impacts the constitutional right to abortion and does not affect other rights protected under the *Due Process Clause*. - individual states now have the power to regulate abortion access as they see fit. - **Public** - Politicians: Pro -- Republicans X Against -- Democrats - Public: disagreement by 55-65% - Many States have enacted legislation **limiting** abortion rights - Including ban of entire abortion without exceptions - Several States have enacted laws and Constitutional amendments **protecting** the right to abortion ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} životaschopnosti[↩](#fnref1){.footnote-back} ::: :::