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Sex, Guns and CO2 Emissions: The Supreme Court Tries to Repeal the 20th Century

Issue 272

What will the Court's next move be?

Steven Wishnia Jul 5

Will the Supreme Court allow state laws against masturbation?

Don’t laugh. By the arguments its far-right bloc has used in cases from Dobbs v. Jackson Women’s Health Organization, its June decision revoking Roe v. Wade, to Lawrence v. Texas, the 2003 case that held laws against oral and anal sex unconstitutional, the answer is yes.

The late Justice Antonin Scalia made it explicit in his dissent in Lawrence. If Texas’s sodomy law were struck down, he wrote, then no state law “based on moral choices” would be sustainable — specifically those “against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” 

Justice Samuel Alito, in his majority opinion in Dobbs, argued that abortion was not protected by either “substantive due process” — the concept that the 14th Amendment principle that liberty cannot be taken away “without due process of law” guarantees certain basic rights — or by the right to privacy 20th-century judges inferred from the Fourth Amendment’s right to be secure against “unreasonable searches and seizures.”

A woman protests outside the Supreme Court on June 24. Photo: Olga Federova.

Justice Clarence Thomas, in his concurring opinion, went further. He said there’s no such thing as “substantive due process,” and therefore the Court should overturn decisions that relied on that concept — those that voided laws against birth control, same-sex sex, and same-sex marriage. 

Alito’s doctrine that nothing is a constitutional right unless it’s “deeply rooted in the Nation’s history and tradition” would enable the Court to go back to the era of Bowers v. Hardwick, the 1986 case upholding Georgia’s sodomy law, in which clear precedents about privacy got trumped by deference to 3,500 years of “morality” as defined by the biblical book of Leviticus. In other words, to repeal the social movements of the last 75 years, dismissing the idea that women and LGBTQIA+ people have rights as a post-1960s aberration.

The Court was not so respectful of tradition the day before, when in Bruen v. New York State Rifle & Pistol Association, it struck down a 111-year-old New York State law strictly limiting who could carry guns in public. Justice Thomas argued that the Second Amendment statement that “the right of the people to keep and bear arms shall not be infringed” is near-absolute, and therefore virtually no restrictions on guns would be constitutional. He ignored that the amendment’s first four words contain the phrase “well regulated.”

The issue of guns is often rural versus urban: People who live in the country are more likely to hunt and live in places with sparse police protection, while city dwellers don’t want some deranged rageball blasting away in the subway. But Thomas and the Court are in line with the powerful extremist faction of the gun-rights movement, which sees barring a man from buying a gun if his ex-girlfriend has an order of protection against him as equal to cutting off his balls and making him recite their pronouns as “she” and “they.”

The Court also handcuffed attempts to reduce global warming. On June 30, in West Virginia v. Environmental Protection Agency, it ruled that the EPA did not have the power to require power plants to phase out burning fossil fuels in order to reduce carbon-dioxide emissions. 

The case involved an Obama-era program blocked by the courts and cancelled by the Trump administration. Under the federal Clean Air Act, the EPA is supposed to regulate stationary sources that “cause, or contribute significantly to, air pollution.” The agency classified carbon dioxide as a pollutant under a “gap filler” provision: It is not toxic or carcinogenic, but is devastating in large quantities. It argued that systemic changes were needed “to mitigate the dangers presented by climate change.”

Anything that interferes with the right to profit, from environmental regulations to worker protections, is oppressive governmental overreach.

Chief Justice John Roberts, however, wrote that the EPA has historically regulated only individual sources of pollution, the plan’s limits on carbon dioxide emissions were too tight for any individual coal plant to meet, and that “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.” 

Roberts relied on what is called the “major questions” doctrine: That some issues are too big to be decided by the administrative state unless specifically authorized by Congress. The ultimate target is the Court’s 1984 decision that courts should defer to federal agencies’ expertise in interpreting laws to set regulations, as long as they have a clear legal and rational basis.

The Court cited the major-questions doctrine in January, when, in a group of cases that could have been called OSHA v. COVID, it blocked emergency federal vaccine regulations. The law gives the Occupational Safety and Health Administration power to issue temporary standards to protect workers exposed to “grave danger” from “new hazards,” but the Court ruled that Congress had not authorized it to order mass vaccinations, and COVID was a public-health hazard, not an occupational hazard. 

That may sound like a bizarre pretext, but such logical stretches are common. In the 2018 Janus v. AFSCME Council 31 decision, the Court reversed a 40-year-old precedent that workers on union jobs had to pay the union fees to cover the costs of representation, but could opt out of contributing to its political activity. It ruled that public-sector workers don’t have to pay anything, because asking the government for a raise is “political activity.”

The judicial far right does have two consistent principles, however. Anything that interferes with the right to profit, from environmental regulations to worker protections, is oppressive governmental overreach. But the government should have the power to intrude into other people’s sex lives, because it’s “morality.”

As for masturbation: “There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship,” Texas Attorney General Greg Abbott, now governor, argued in 2007, defending the state’s law prohibiting the sale of dildos. 

A federal appeals court disagreed, holding that there is a “substantive due process right to engage in consensual intimate conduct in the home free from government intrusion.”

But that ruling relied on the Lawrence decision.

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