SUNDAY, MAY 8 , 2022. THE WASHINGTON POST EZ RE A31S
ometime during their years of
instruction, most law school stu-
dents encounter the Latin phrase
“obiter dictum,” and many of
them promptly forget it. How, exactly, to
translate the words is a test of one’s
jadedness. Literally, it refers to material
in a judicial ruling “said in passing.”
More colorfully, it is the judge’s stray
thoughts, wishful thinking, rhetorical
flourishes, or blah, blah, blah. “Obiter
dicta” (the plural form, highly necessary
in discussing the lengthy writings of
Supreme Court justices) lack the force of
law.
Some conservatives have been hard at
work trying to sell the leaked draft of a
radical antiabortion ruling as a limited
step by a cautious court. It is no such
thing. The author, Justice Samuel A. Ali-
to Jr., unfurls a lot of conservative drap-
ery to disguise his work, but the cascad-
ing screens are merely obiter dicta. And
just as he plows headlong and scornfully
through the dicta of the justices who
defined a limited abortion right, future
justices will be free to tear up Alito’s own
gossamer assurances.
Dicta are especially vulnerable to be-
ing ignored when they are not true.
Alito’s 98-page draft is thick with logical
fallacies and assertions that bear no
scrutiny. These tend to serve a single
purpose: to give the public a false assur-
ance that the ruling has no bearing on
any other rights.
Although Alito insists, through his
rhetoric, that his ruling is limited in
scope, as a matter of law he would
eviscerate the idea that Americans can
gain liberty except by legislative action
or constitutional amendment. His legal
reasoning for striking down abortion
rights is equally applicable to the right to
marry a person of the same sex and the
right to choose a partner for consensual
sex.
Like the right to an abortion, the
rights of same-sex couples are not enu-
merated in the Constitution. None of
these rights was recognized at the time
the 14th Amendment was ratified in- All these rights were a matter of
considerable public debate when they
were recognized by the Supreme Court.
All were considered matters of great
moral significance at the time they were
decided. In striking down laws that
criminalized homosexual relations and
forbade same-sex marriage, the Supreme
Court short-circuited debate in state
legislatures and diminished the power of
some Americans to impose their moral
views.
In all these respects, Alito’s legal argu-
ment for striking down Roe v. Wade
(1973) and Planned Parenthood v. Casey
(1992) applies equally to the right to
choose one’s consensual sexual partners,
recognized in Lawrence v. Texas (2003),
and the right to marry a person of the
same sex, recognized in Obergefell
v. Hodges (2015). Only Alito’s dicta sepa-
rate the cases.
Alito further obfuscates the potential
reach of his would-be ruling by asserting
— again, as mere dicta — that the court’s
ruling in Roe cut off public debate to
some uniquely unconstitutional degree.
Yet he is flat wrong when he claims that
state legislatures have had no say over
abortion post-Roe. In fact, the legislative
debate has been raucous, and laws con-
cerning abortion vary widely from state
to state.
The rulings in Lawrence and Oberge-
fell were both far more categorical than
either Roe or Casey. They left state
legislatures with essentially no room to
discriminate against same-sex intimate
relations among consenting adults, in
contrast with the wide field of regulation
available around abortion.
In still more dicta, Alito asserts with-
out legal grounding that the right to an
abortion moments after conception —
via the “morning-after pill,” for example
— can be clearly distinguished from the
right to contraception recognized in
Griswold v. Connecticut (1965) and
Eisenstadt v. Baird (1972). Those rul-
ings interrupted public debate just as
Roe did, and at roughly the same histori-
cal moment. They extended rights not
enumerated in the Constitution, nor
acknowledged in 1868. And like Roe,
they imposed a secular view of liberty in
opposition to the “natural law” theology
espoused by many conservative
C hristians.
Alito is hardly the first justice to
mislead through obiter dicta. Then-
J ustice Anthony M. Kennedy averred in
his Lawrence opinion that the ruling did
not point a path to same-sex marriage,
then relied on Lawrence when writing
Obergefell. Similarly, the court declared
in its 2000 election case Bush v. Gore that
the ruling meant nothing for future
disputes, yet today’s Republicans are
using seeds planted there to argue that
state legislatures can overrule voters in
appointing presidential electors.
For that matter, it now appears clear
that the sworn testimony of several
justices at their confirmation hearings
was merely “said in passing.” Abortion
rights are “worthy as treatment of prec-
edent, like any other” (Neil M. Gorsuch);
Casey is “precedent on precedent” (Brett
M. Kavanagh); “Roe versus Wade is an
important precedent of the Supreme
Court” (Alito).
Blah, blah, blah.
DAVID VON DREHLEAlito’s Roesmokescreenobscures trueradicalismThe idea, the city said cheerily,
was to “foster diversity,” “cre-
ate an environment in the City
where everyone feels includ-
ed,” and promote harmony “among
Boston’s many communities.” What
could possibly go wrong? In today’s
prickly America, enough to require the
Supreme Court to referee the dispute.
It did so on Monday, giving the city a
tutorial about the obvious: Public fo-
rums are open to the public. Boston
did, however, bring unity: The court
spoke unanimously, through an opin-
ion by retiring Justice Stephen G. Brey-
er, who is heading home to an edified
Boston.
There, at City Hall, from time to time
— 284 times in 12 years, before a
problem occurred — the city allowed
various groups to fly their flags from
where the city’s usually flies. The flags
of China and Cuba have flown there.
The 285th request was from a group
wishing to celebrate Christians’ contri-
butions to Boston, by flying what the
group’s leader calls a “Christian flag.”
Calling it this probably made a city
official skittish. The mere fact that the
flag includes a cross would not have
alarmed the employee of a city whose
flag includes Latin words that trans-
late as “God be with us as he was with
our fathers.” And the Bunker Hill flag,
which contains the St. George’s cross, is
quite similar to the “Christian flag,” but
not so described. The categorization of
the flag as “Christian” caused the Bos-
ton official to flinch from the possibili-
ty of becoming entangled with the
migraine-inducing nuances of estab-
lishment clause jurisprudence. So, one
word on the application was the reason
the city censored the flag.
One can sympathize with him. The
constitutional injunction that there
shall be no laws “respecting an estab-
lishment of religion” has produced
much hairsplitting, as when the court
in the 1970s held that public funds
could be used to provide books for
parochial schools, but not maps. A
bemused Sen. Daniel Patrick Moyni-
han (D-N.Y) wondered: What about
atlases, which are books of maps?
The Christian flag people say that
the city has described this one pole as
one of the city’s “public forums” for “all
applicants.” But the city says: Not so,
the forum is only the ground around
the pole. A federal appeals court sided
with the city, saying that whatever is
run up the city’s pole constitutes gov-
ernment speech, and governments can
say what they like as long as they avoid
endorsing religion. Nine justices dis-
agreed, saying that the city created a
public forum open to all.
The three-pronged test of whether a
government involvement with religion
avoids violating the establishment
clause is: The involvement must have a
“secular legislative purpose,” its “pri-
mary effect” must not advance or
inhibit religion, and it must not foster
“excessive government entanglement
with religion.” Breyer easily concluded
that brief flag-raising ceremonies —
unlike, say, government supervision of
messages on license plates that govern-
ment requires drivers to purchase, or
the placement of permanent monu-
ments in public parks — are not gov-
ernment speech. They are constitu-
tionally protected private speech by
participants in the ceremonies, hence
do not implicate the establishment
clause.
In a trenchant concurrence, Justice
Samuel A. Alito Jr., joined by Justices
Clarence Thomas and Neil M. Gorsuch,
provides a properly restrictive defini-
tion of “government speech,” one that,
were it adopted by the court, would
prevent government from expansively
claiming to be speaking when it really
is not. This would prevent government,
as in this case, from subjecting private
speakers to viewpoint discrimination.
This is Alito’s definition: “Government
speech occurs if — but only if — a
government purposefully expresses a
message of its own through persons
authorized to speak on its behalf.”
In another concurrence, Gorsuch
argues for abandoning the three-prong
test of establishment. Its complex clev-
erness has, he says, produced “chaos”
by not being “humble” enough to ad-
here to the establishment clause’s orig-
inal meaning. Look above at the phras-
es in quotation marks in the three-
pronged test. Now, Gorsuch’s criticism:
“It’s hard not to wonder whether
some simply prefer the policy out-
comes [the test] can be manipulated to
produce.” That is, the test’s elastic
terms are amenable to stretching
enough to frequently find “establish-
ment” of religion. Gorsuch quotes the
eminent legal scholar Michael W. Mc-
Connell: “No one at the time of the
founding is recorded as arguing that
the use of religious symbols in public
contexts was a form of religious
e stablishment.”
It is axiomatic that hard cases often
make bad law. Boston’s flag case was
easy, but beneath the surface unanimi-
ty, within the concurrences, there bub-
bled a ferment of disagreement that
might be a harbinger of better law
resulting from renewed respect for the
original meaning of “establishment.”GEORGE F. WILLWhy B oston’s‘Christian’flag bandidn’t flyBY LIZ CHENEY
AND JAKE AUCHINCLOSSAs a Republican congresswom-
an from Wyoming and a
Democratic congressman
from Massachusetts, we have
firsthand experience with the parti-
san clashes in Washington. The two of
us have frequently been on opposite
sides this term, including on national
security issues such as President
Biden’s withdrawal from Afghani-
stan, which one of us (Cheney) op-
posed and the other (Auchincloss)
supported.
But on the issue of Ukraine, there is
no daylight between us. And there
should be no partisan divide among
members in Congress. It must be the
policy of the United States that the
strategic objective in Ukraine is victo-
ry for a free and democratic Ukraine,
and defeat for Vladimir Putin. The
strength of our democracy here at
home depends on it.
The war in Ukraine entered a pivot-
al new phase on April 19. Russia is
now fighting for complete control of
Donbas and southern Ukraine. If suc-
cessful, Putin’s forces will landlock
and dismember the country — and
may attack the capital again. What
began as a war of maneuver, in which
speed and mobility were critical, is
becoming a war of attrition, in which
firepower and willpower are ever
more important.
The United States is critical to
sustaining both for our Ukrainian
allies. To balance the disparity in
firepower, the U.S. government must
guarantee weapons, training and in-
telligence support that Ukrainian
forces can use. And it should work
closely with European allies to wield
primary and secondary sanctions toblockade Russian oil exports to re-
duce Moscow’s ability to fund its war
machine. To buttress Ukrainian will-
power, the United States should rally
its NATO allies to make it clear that
the sovereignty of Ukraine is not
negotiable, and Putin must not ben-
efit from his aggression.
We in Congress have an important
role in this commitment. Last month,
we both voted for the Ukraine Democ-
racy Defense Lend-Lease Act, which,
like its namesake from World War II,
will enable more materiel support for
an ally whose cause is existential.
With our voices and votes, members
of Congress must demonstrate bipar-
tisan support for a policy of victory for
the people of Ukraine.
Putin, in particular, must be under
no illusion about U.S. resolve. The
Russian president has long sought to
divide, disorient and demoralize the
U.S. body politic. His efforts will not
succeed. Neither the United States
nor the world will sit silently by as
Russia commits atrocities and war
crimes across Ukraine. We will not
remain neutral in this fundamental
battle for freedom. In the United
States, across party lines, we know
that our own security requires the
survival of freedom and the defeat of
Russian forces in Ukraine. In this, we
are united.
Since 1945, the United States has
been the linchpin of the postwar,
rules-based international order. In
this order, might does not make right;
under this order, freedom, prosperity
and human rights have all advanced.
If the United States and its allies
cannot prevent and punish war
crimes right on NATO’s border, then
enemies further afield, big and small,
will be emboldened.
The Chinese Communist Party(CCP) wants to see the United States
and NATO fail in this effort. The CCP
opposes the postwar order and seeks
to replace it with a global surveillance
state that would extinguish freedom.
Hong Kong has been the most notable
casualty of the CCP’s targeting of the
postwar order. Many experts predict
Taiwan is their next target.
Each potential flash point is differ-
ent. But from East Asia to Europe,
Africa to Latin America, they are
threaded together by the same exis-
tential question: Is democracy on the
march, or in retreat? The outcome in
Ukraine will reverberate across the
world.
The United States — and Congress
— must continue to deliver a strong
and unequivocal answer, because de-
mocracy everywhere is fragile.
Strains of authoritarianism here at
home make that painfully clear. De-
mocracies, though, draw succor from
one another. In defending Ukraine’s
democracy, we stand up for our own.
In combating tyranny overseas, we
strengthen our freedom at home.
So, yes, the partisan temperature is
high. The parties disagree on plenty.
But from deep-red Wyoming to
deep-blue Massachusetts, Republi-
cans and Democrats must demon-
strate to our allies and our enemies
alike that there are no half-measures
on the front lines of the free world.
The United States must stand with
the people of Ukraine.
They are not just fighting for their
own freedom. They are fighting for
ours, too.Liz Cheney, a Republican, is Wyoming’s at-
large representative in the U.S. House of
Representatives. Jake Auchincloss, a
Democrat, represents Massachusetts’s
4th Congressional District in the House.Our democracy depends onpreserving freedom in UkraineHEIDI LEVINE FOR THE WASHINGTON POST
Ukrainian soldiers find Russian ammunition in the destroyed village of Moshchun, Ukraine, on March 30.Until Supreme Court Justice Sam-
uel A. Alito Jr.’s leaked draft opin-
ion that would overturn Roe
v. Wade was published Monday, I
didn’t fully understand just how depend-
ent my same-sex marriage is on a woman’s
right to choose an abortion. Now I do. And
I’m terrified.
The tremors of this political earth-
quake reached me the next day in Los
Angeles during a conversation with Ian
Mackey, an out gay Missouri state repre-
sentative who went viral last month after
an impassioned speech standing up to
fellow lawmakers whose noxious legisla-
tion targets transgender kids. Mackey
pointed out that Roe provided the under-
pinning for pro-LGBTQ rulings including
Obergefell v. Hodges, the 2015 decision
that legalized same-sex marriage nation-
wide. Without Roe, the foundation for
Obergefell is gone — and the more than
568,000 same-sex marriages performed
since then, including my own, could be
invalidated.
I didn’t doubt Mackey’s warning. But
after finally wading through Alito’s
9 8-page draft, my fear is off the charts.
By now, you know the Alito draft would
undo two Supreme Court precedents. In
1973’s Roe, the justices ruled that abortion
restrictions were unconstitutional be-
cause they violated the 14th Amendment’s
admonition that states not “deprive any
person of life, liberty, or property without
due process of law.” And 1992’s Planned
Parenthood of Southeastern Pennsylva-
nia v. Casey tinkered with some aspects of
Roe but reaffirmed the due process rights
of women to seek an abortion.
The first of myriad red flags appears onPage 5. “The Constitution makes no refer-
ence to abortion, and no such right is
implicitly protected by any constitutional
provision, including the one on which the
defenders of Roe and Casey now chiefly
rely — the Due Process Clause of the
Fourteenth Amendment,” Alito writes.
“That provision has been held to guaran-
tee some rights that are not mentioned in
the Constitution, but any such right must
be ‘deeply rooted in this Nation’s history
and tradition’ and ‘implicit in the concept
of ordered liberty.’ ” This country has a lot
of rights not deeply rooted. For instance,
the nation is 245 years old, but racial
integration is just 57 years old. Marriage
equality is nearly seven.Another warning is where Alito rips the
Roe ruling because “it held that the abor-
tion right, which is not mentioned in the
Constitution, is part of a right to privacy,
which is also not mentioned.” And Casey,
he sneers, is grounded “solely on the
theory that the right to obtain an abortion
is part of the ‘liberty’ protected by the
Fourteenth Amendment’s Due Process
Clause.” Theory?
Then Alito casts aspersions on the
cases the court used in its Casey ruling to
justify that liberty “theory.” Among them
are Loving v. Virginia (legalized inter -racial marriage) and Griswold v. Connect-
icut (guaranteed access to contracep-
tion). He also hammers away at the
“theory” by taking aim at post-Casey
decisions such as Lawrence v. Texas
( decriminalized consensual sex between
adults) and Obergefell.
After more than 60 pages of question-
ing the definition of privacy, exploring
rationales for overturning precedent and
deriding Roe as an exercise in judicial
policymaking, Alito makes an astonishing
assertion: “To ensure that our decision is
not misunderstood or mischaracterized,
we emphasize that our decision concerns
the constitutional right to abortion and
no other right. Nothing in this opinion
should be understood to cast doubt on
precedents that do not concern abortion.”
Alito must think we’re fools. I’m as
reassured by that as I was when the
pharmacist said to this trypanophobe,
“You won’t feel a thing,” before jabbing me
with my second coronavirus booster. If
Roe and Casey must be overturned be-
cause they are hopelessly flawed, then all
other cases that rely on their arguments
asserting privacy and personal liberty are
endangered. The 6-to-3 conservative Su-
preme Court majority is packed with
ideologues; how could it resist taking
Alito’s radical thinking to its logical end?
The fight for women’s rights is all our
fight. It always has been. But thanks to the
leak of Alito’s draft opinion, I know that
it’s not just a matter of solidarity. Even if
the final ruling in the next month or two
isn’t as radical as the draft opinion, what
Alito put forth is a clear warning to
LGBTQ Americans that our rights could
be stripped next.JONATHAN CAPEHARTThe Alito draft is a warningto LGBTQ AmericansAfter w ading through Alito’s98-page draft, my fearis off the charts.