Professor Brown Weighs in on Supreme Court’s Abortion, Prayer Rulings

7/8/2022  - 

Capital University Law School Professor and Newton D. Baker/Baker & Hostetler Chair Mark R. Brown says Supreme Court Justice Samuel Alito got it wrong in his majority opinion, which overturned women’s right to abortion.

In a June 27 guest column for the Columbus Dispatch, “Constitution expert: ‘Alito’s wrath’ may strip away your right to sex, kids,” Professor Brown wrote that, “Justice Alito’s opinion’s flaws are many, but his premier mistake is his insistence on using text and history as exclusive markers for constitutional rights.”

Brown, who has taught constitutional law for 35 years, says that, using Alito’s logic, the rights to contraception, same-sex marriage, sexual intimacy and even “a parent’s fundamental right to keep and care for her children” may all be at risk

He notes, “A number of fundamental rights, after all, lack not only textual support but also historical background. Called ‘substantive due process,’ the analysis used to recognize these fundamental rights looks beyond text and history to include logic, consistency, costs and benefits.

He goes on to explain that throughout centuries parents’ behaviors have been scrutinized and children removed from their homes, including seizing poor children from their homes to “impress them into the service of others.”

“Judged by text and history, the Supreme Court’s recognition of fundamental parental rights is just as ‘egregiously wrong’ as its recognition of a right to choose abortion.”

Professor Brown also discussed the High Court’s decision that a high school football coach was exercising his First Amendment rights by praying on the 50-yard line during a game.

In an op-ed, “Supreme Court ruling on prayer undercuts longstanding precedent: Mark R. Brown,” published on Cleveland.com, July 3, Brown called the decision “more sweeping and dangerous” than overturning Roe v. Wade.

The majority opinion reversed a 1971 case, “which encapsulated almost 100 years’ worth of cases interpreting and applying the First Amendment’s Establishment Clause,” Brown wrote.

The clause drew a line between church and state. In her dissenting opinion, Justice Sonia Sotomayor said the decision “sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance.”

Brown says, “One can only hope that Sotomayor is wrong. For if she is correct, the court could be leading the country back to its founding principle of religious persecution.”