Nessel: SCOTUS could overturn same-sex marriage, birth control decisions

Susan J. Demas

Attorney General Dana Nessel gave her blunt assessment at a Planned Parenthood forum in April when she declared she believes Roe v. Wade will be overturned, but she won’t prosecute women getting abortions.

In an interview with the Democratic AG on Mackinac Island last week, the Michigan Advance asked for her assessment of how the 2015 decision legalizing same-sex marriage might fare under the ulta-conservative U.S. Supreme Court.

Attorney General Dana Nessel | Susan J. Demas

Nessel said she’s worried we’re moving into “some really dangerous territory” when it comes to LGBTQ rights and civil rights overall.

She expressed concern about the marriage equality decision, Obergefell v. Hodges, in which she was intimately involved before her 2018 election, representing a Hazel Park couple, Jayne Rowse and April DeBoer.

The 5-4 decision was written by Justice Anthony Kennedy. He has since retired and was replaced by conservative Brett Kavanaugh, who was confirmed last year despite sexual assault allegations. Chief Justice John Roberts, who is now considered the swing vote on the court, dissented in Obergefell.

Jayne Rowse (L) and her partner April DeBoer hold hands at a rally in favor of same-sex marriage, October 16, 2013 in Detroit, Michigan. | Bill Pugliano/Getty Images

“If you’re going to take a doctrine that I’ve seen espoused by many conservatives at this point — social conservatives — which is that you can utilize your religion not as a shield, but as a sword — instead of just protecting your religious rights, you skewer the rights of others,” Nessel said. “Where does that end?”

The attorney general said that other major decisions could fall, as well, including Griswold v. Connecticut, which found that a state’s contraceptive ban violated the right to marital privacy. And Nessel noted that Lawrence v. Texas, which invalidated state sodomy laws, also could be reversed.

“It’s sort of a slippery slope when you get to anything that involves the 14th Amendment and the Equal Protection Clause,” Nessel said.

“… I think we’re really moving into some very dangerous territory. And we are a democracy still, last I checked, and not a theocracy — but that’s subject to change, given the opinions of the United States Supreme Court.”

The following are excerpts from the interview, which, yes, include a Monty Python reference:

Michigan Advance: So you’ve said that you believe that the U.S. Supreme Court is going to overturn Roe v. Wade. Do you think that they will overturn Obergefell v. Hodges, as well?

Nessel: Well, I think once you get into those kinds of issues, you know, I don’t know where it ends exactly. So if you look at right to privacy cases which don’t just include, of course, Obergefell, but Griswold v. Connecticut was the preeminent decision on birth control.

It’s sort of a slippery slope when you get to anything that involves the 14th Amendment and the Equal Protection Clause. I think we have to be concerned about Obergefell, as well.

… I’ll be honest with you; I was so grateful to Michigan Advance for covering the case involving the U.S. Department of Health and Human Services because you guys were the only ones. It’s such a huge case. I mean, the fact that the [President Donald] Trump administration has propagated rule indicating that anyone in the medical field can refuse to treat a patient or refuse to provide a particular service based on their personal religious beliefs.

Nessel sues Trump admin. over religious exemptions, says America becoming a ‘virtual theocracy’

It violates the doctrine of separation of church and state in the most egregious way imaginable. And you can only imagine the ends that we could take that to. But when you have that type of thing that is happening you really have to ask yourself: Where does that end?

So if you look at the line of cases that involve the Equal Protection Clause and the 14th Amendment as it applies to the state. … If you’re going to take a doctrine that I’ve seen espoused by many conservatives at this point — social conservatives — which is that you can utilize your religion not as a shield, but as a sword — instead of just protecting your religious rights, you skewer the rights of others.

Dana Nessel being interviewed after a federal judge agreed to hear a challenge to its same-sex marriage ban, Oct. 16, 2013 | Bill Pugliano, Getty Images

Where does that end? And so, if you say, ‘Well, it offends my religious sensibilities to allow you to have a state-sanctioned marriage,’ then, yeah, I can see them creeping into things like Obergefell, and even worse things like Lawrence v. Texas, which was a sad development in the lives of so many.

I think we’re really moving into some very dangerous territory. And we are a democracy still, last I checked, and not a theocracy — but that’s subject to change, given the opinions of the United States Supreme Court.

Michigan Advance: Unlike you, I am not a lawyer. This isn’t just a threat for LGBTQ rights. Couldn’t you possibly apply this so that you could turn away people at lunch counters of different races, as some have suggested?

Nessel: Well, you know, at this point, we have suspect class designations on race, so I would suggest that we would have to have a ruling from the Supreme Court so that the phrase that’s used in the application of it is ‘compelling circumstances.’ And the law has to be strictly and narrowly tailored to fit those circumstances when you have a suspect class.

Sexual orientation and gender identity still, at this point, are not deemed as a suspect class. So you either use the lens of intermediate scrutiny or rational basis scrutiny, which is a little different. And I know this is kind of in the weeds. Sorry, but I’m still a lawyer.

… So I think it would be harder at this point, at this point, but I don’t know. So I’ll give you another example. … Under the new [health care] rules propagated by the Trump administration, why couldn’t you say, ‘Listen, I don’t believe in divorce. I think it’s unholy, and I see you’re divorced, so I won’t treat you.’ Or why couldn’t you say, ‘You’re not married, but you want birth control’ or even, ‘I don’t agree in the concept of birth control; every sperm is sacred.’

What’s that song called? Who am I thinking of?

Michigan Advance: Monty Python.

Nessel: Monty Python, right. No, but you could. You could say, ‘I don’t believe in birth control,’ irrespective of the reason you’re using it. You could have your receptionist in the doctor’s office say, ‘I’m not going to schedule an appointment; what is it you’re seeing the doctor for?’ [And you would say,] ‘I’d like to get a refill on my birth control medication.’ [And the receptionist would say,] ‘Well, I’m not gonna schedule an appointment for you.’

That would be legitimate under the rules as propagated by the Department of Health and Human Services under the Trump administration. So where does that end?

Michigan Advance: As far as being added to being suspect classes would the federal Equality Act — that just passed the U.S. House and is before the Senate — does that do that?

Nessel: We sort of don’t need that then in that case, because you have the law defining the suspect classes. … The reason why that is so important is because we don’t have legislation for this. Once we have legislation for this, it is clear as day so the court doesn’t have to worry about how they’re going to interpret a particular act because you already know that it’s been made illegal.

So the solution to me [is] … having the Equality Act passed in the Senate get signed by the president. I know there’s no hope of that actually happening, but that’s what makes it so important. We don’t have suspect class status for LGBTQ people right now.

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Susan J. Demas is a 19-year journalism veteran and one of the state’s foremost experts on Michigan politics, appearing on MSNBC, CNN, NPR and WKAR-TV’s “Off the Record.” In addition to serving as Editor-in-Chief, she is the Advance’s chief columnist, writing on women, LGBTQs, the state budget, the economy and more. Most recently, she served as Vice President of Farough & Associates, Michigan’s premier political communications firm. For almost five years, Susan was the Editor and Publisher of Inside Michigan Politics, the most-cited political newsletter in the state. Susan’s award-winning political analysis has run in more than 80 national, international and regional media outlets, including the Guardian U.K., NBC News, the New York Times, the Detroit News and MLive. She is the only Michigan journalist to be named to the Washington Post’s list of “Best Political Reporters,” the Huffington Post’s list of “Best Political Tweeters” and the Washington Post’s list of “Best Political Bloggers.” Susan was the recipient of a prestigious Knight Foundation fellowship in nonprofits and politics. She served as Deputy Editor for MIRS News and helped launch the Michigan Truth Squad, the Center for Michigan’s fact-checking project. She started her journalism career reporting on the Iowa caucuses for The (Cedar Rapids) Gazette. Susan has hiked over 3,000 solo miles across four continents and climbed more than 60 mountains. She also enjoys dragging her husband and two teenagers along, even if no one else wants to sleep in a tent anymore.

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