The Dobbs Fraud by SCOTUS's Fake Originalists (Part III)

The Dobbs majority knowingly violated the Constitution and flouted SCOTUS precedent

Despite the pretense by the Dobbs majority that our “history” and “tradition” did not confirm the “right” at issue in Dobbs, such right was addressed clearly and emphatically in the First Amendment and in copious SCOTUS precedent thereunder. The justices responsible for Dobbs knew that they were violating—and they knew they were helping state legislators violate—Americans’ rights secured by the First and Fourteenth Amendments.

The Fourteenth Amendment is clear, categorical and emphatic: “No State” employee has any power to “make or enforce any law” that “abridge[s any] privileges or immunities of [U.S.] citizens” or any power to “deprive any person of life, liberty, or property, without due process of law” or to “deny to any person” the “equal protection of the laws.” The majority in Dobbs deceitfully pretended that something in our Constitution gave them the power to override or ignore the Fourteenth Amendment regarding all three prohibitions (and even more of our Constitution).

Justice Thomas’s own concurrence in Dobbs highlighted the majority’s blatantly and intentionally illegal, unconstitutional and anti-constitutional tactics: “After overruling” many “decisions” that the justices in the Dobbs majority opposed for personal religious reasons, only then should SCOTUS finally address “the question” of which “constitutional provisions” actually do “guarantee the” very same “rights.” “For example,” only after overruling such “decisions” should SCOTUS finally “consider whether” the very same “rights” (“any of the rights [previously] announced” by SCOTUS) “are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment. Amdt. 14, §1.”

The tactics that Justice Thomas suggested (and the tactics employed by the Dobbs majority) openly and intentionally violated the justices’ own promises that they “will support and defend” our “Constitution” against “all enemies,” including “domestic” enemies, and that they “will bear true faith and allegiance” to our Constitution. They openly and intentionally violated the justices’ own promises that they “will administer justice without respect to persons” and “will faithfully and impartially discharge and perform all” their “duties” under “the Constitution.”

One of the most important elements of our Bill of Rights, the Tenth Amendment, emphasized that SCOTUS has only the “powers” that were “delegated to” it “by the Constitution.” All other “powers” that are relevant to Dobbs were emphatically “reserved” to “the people.”

An even more important element of our Bill of Rights, the First Amendment, clearly and emphatically confirmed some of the most important and precious privileges, immunities and powers of the people. No part of the federal government was delegated any power to make any purported “law respecting an establishment of religion” or “prohibiting the free exercise” of any matter of individual conscience. All three prohibitions in the Fourteenth Amendment, above (protecting privileges and immunities, due process of law and equal protection of laws) protect the First Amendment rights and freedoms of any person in any state from any state official.

The conduct of Justice Alito and his adherents (and the state officials they purported to empower) in Dobbs is powerfully and emphatically opposed by the First Amendment (and copious SCOTUS precedent construing and applying the First Amendment regarding our freedom to think and live as we wish.

The Dobbs majority knew (some of them emphasized in Lozman v. City of Riviera Beach, 585 U.S. 87 (2018)) that the First Amendment protects “the most precious of the liberties safeguarded by the Bill of Rights.”

SCOTUS had long emphasized in Wallace v. Jaffree, 472 U.S. 38 (1985) that “the individual’s freedom of conscience” is “the central liberty that unifies the various Clauses in the First Amendment.” “[T]he individual freedom of conscience protected by the First Amendment embraces the right to select” (or comply with the tenets of) “any religious faith or [even] none at all.”

As recently as 2021, Chief Justice Roberts writing for a unanimous SCOTUS in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) emphasized (again) that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

In McCreary County v. ACLU, 545 U.S. 844 (2005), a concurring opinion emphasized, “Our guiding principle” for a very long time “has been James Madison’s” own guiding principle: “[t]he Religion” of “every man must be left to the conviction and conscience of every man.” The majority opinion even emphasized exactly how harshly Madison would criticize Dobbs: “it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” The majority emphasized that Madison emphasized “with respect to religion and government” the “tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference.”

“This” (the majority emphasized) “is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.” “The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters,” but also “to guard against the civic divisiveness that follows when the government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists).”

The Dobbs majority manifestly did not remain neutral, and they failed to fulfill their duty under our Constitution to order state officials to remain neutral. They did not leave potential mothers and fathers to their own convictions and consciences. The justices in the Dobbs majority actively interfered. They chose a side—the side that coincided with their personal convictions about conscience—and they actively supported their side. They did so without anyone even offering any justification that was even potentially constitutional. To use Justice Thomas’s words in his concurring opinion in Dobbs, the power exercised by the majority in Dobbs (and by the state officials they empowered) “is ultimately a policy goal in desperate search of a constitutional justification.”

With Dobbs, SCOTUS justices pretended they had the power to authorize state officials to make and enforce law “respecting an establishment of religion” and interfering with “the free exercise” of the conscience of potential mothers and fathers. By deciding to reverse fifty-year old precedent (Roe v. Wade), the majority in Dobbs intentionally acted to help state officials make and enforce laws respecting an establishment of religion and egregiously interfering with freedom of conscience.

In Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 584 U.S. 617 (2018), the majority of justices (including Chief Justice Roberts and Justices Alito and Gorsuch) emphasized that no government in America may “base laws or regulations on hostility” to any “religious viewpoint.” The “government” also “has no role in expressing or even suggesting whether the religious ground for” an individual’s “conscience-based objection is legitimate or illegitimate.” The majority also quoted W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) to emphasize that “no official” whatsoever “can prescribe what shall be orthodox in politics” or “religion” or “other matters of opinion.”

The justices in the majority in Masterpiece Cakeshop and 303 Creative invoked longstanding principles (longstanding history and tradition) to rule that government cannot make a woman bake a cake or make a pretty website against the dictates of her own conscience. Yet, some of the same justices used Dobbs to rule that government can make a woman make an actual person against the dictates of her own conscience. Their discrimination makes no sense (in any sense consistent with our Constitution or common sense).

In 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023) Justice Gorsuch delivered the opinion for the majority and he was joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh and Barrett. They emphasized that in matters of conscience, “government” cannot “coerce an individual” to act “contrary to her beliefs on a significant issue of personal conviction.” Government employees cannot “force someone” to “abandon her conscience” without proof that such force “would serve” a “governmental interest” and proof that such “interest” is so significant that it is “compelling” and proof “that no less restrictive alternative exists to secure that interest.” The majority in 303 Creative also quoted Barnette to emphasize a particular “fixed star in our constitutional constellation.”

In 2023 in Tingley v. Ferguson, 144 S. Ct. 33 (2023), Justice Thomas (in a dissenting opinion in which Justice Alito joined) also quoted Barnette. They did so to emphasize that it is a “fixed star in our constitutional constellation” that “no official” whatsoever has the power to “prescribe what shall be orthodox” in “politics” or “religion” or “force citizens to confess by word or act their faith therein.” Over the past 80 years, many justices have quoted Barnette to emphasize such words and principles.

The longstanding oft-quoted words and principles in Barnette are emphatically contrary to the conduct of the Dobbs majority. The “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” So it “is any fixed star in our constitutional constellation” that “no official” whatsoever “can prescribe what shall be orthodox in politics” or “religion” or “other matters of opinion or force citizens to confess by word or act their faith therein.”

Only a few years before Barnette, in Cantwell v. Conn., 310 U.S. 296 (1940), SCOTUS had emphasized the following about the freedom of conscience. “The fundamental concept of liberty embodied in” the First and Fourteenth Amendments regarding “the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed.” “Freedom of conscience” plainly “cannot be restricted by law. On the other hand, it safeguards the free exercise” of “religion. Thus the Amendment embraces two concepts,” each individual’s “freedom to believe and freedom to act.”

In Lee v. Weisman, 505 U.S. 577 (1992), SCOTUS emphasized “[t]he method for protecting” our “freedom of conscience in religious matters.” “[T]he Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience” that “has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions.” “The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government” any “expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.”

A concurring opinion added: “There is no doubt that attempts to aid religion through government coercion jeopardize freedom of conscience. Even subtle pressure diminishes the right of each individual to choose voluntarily what to believe.”