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Monday, June 6, 2022

NJ Race Discrimination Attorney, Leaked US Supreme Court Opinion Overturning Roe v. Wade, Has Court Before Overturned Precedents?

Many persons who follow the evolution of the law as to the rights of employees and other individuals, wonder if the US Supreme Court in past years has overturned its own precedents. This concern arises in part from the recently leaked US Supreme Court Opinion in Dobbs v. Jackson Women’s Health Organization. The Dobbs Opinion overturns the almost 50-year-old precedent of Roe v. Wade, 410 U. S. 113, which was decided January 22, 1973. The answer is yes, but rarely. The leaked Opinion presents an analysis purporting that it has a history of overturning precedents. The Opinion contains explanations attempting to demonstrate that it is not unusual for the Court to overturn long-standing precedents.

Au contraire! However, unlike the leaked Opinion in Dobbs v. Jackson, in almost all the cases cited to in the leaked Dobbs Opinion, that were cases which the Court had overturned, the cases were overturned for the purpose of expanding individual rights and a person’s personal freedoms, giving people more legal rights and personal autonomy free of government restrictions on their personal autonomy.

Following is a short list of cases cited in the Dobbs Opinion, where the Court, rather than the government placing severe restrictions on an individual’s personal autotomy and freedom of choice, did the opposite and  overturned its own precedent and expanded a person’s rights for individual autonomy and choice free of government restrictions:

Brown v. Board of Education, 347 U.S. 483 (1954), overturned Plessy v. Ferguson, 163 U.S. 537 (1896) and the  "separate but equal" doctrine which forced Blacks to attend “colored only” schools and forbade them from attending White schools.

Loving v. Virginia, 388 U.S. 1 (1967 ), the U.S. Supreme Court unanimously (9–0) struck down state antimiscegenation (interracial marriage) statutes which were a strict prohibition of a "white person" marrying any person other than a "white person". Loving v. Virginia mandated that a state could not prohibit a person from choosing to marry a person of a different race. The Court noted that, “The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriage.”

West Virginia State Bd of Education v. Barnette, 319 U.S. 624, (1943) overruled Minersville School District v. Gobitis 310 U.S. 586, (1940) and ruled that states and other governments could not force school children to salute the flag or say the Pledge of Allegiance if the family chose not to do so because of their religious beliefs.

Lawrence v. Texas 539 U.S. 558 (2003) overturned Bowers v. Hardwick 478 U.S. 186 (1986) and it expanded the rights of personal freedom, autonomy and choice to engage in sexual conduct with persons of the same sex. It invalidated a law making it a crime for two persons of the same sex to engage in sexual conduct.

Obergefell v. Hodges 576 U.S. 644 (2015) overruled Baker v. Nelson (1972) and it expanded a person’s personal autonomy and freedom to marry a person of the same sex. It ruled that right to marry is fundamental liberty that applies to couples regardless of their sex.

BROWN V. BOARD OF EDUCATION

In Brown v. Bd. of Educ., 347 U.S. 483, decided May 17, 1954, the US Supreme Court found that forcing Blacks to attend “colored only” schools, segregation by race, had no place in public education. Brown v. the Board of Education overturned Plessy v. Ferguson which had established a "separate but equal" doctrine as a legal precedent. Plessy v. Ferguson was decided after the abolition of slavery but during the period of apartheid in the United States. It was not until the 1954 that the Supreme Court overturned the Plessy v. Ferguson 1896 decision and the "separate but equal" doctrine, yet government mandated apartheid continued in many states.

After the abolition of slavery, apartheid that was equal in severity to that of South Africa at its worse, existed in much of the United States for almost a century. It is troubling to this author, that for many younger generations in this country, they have no knowledge of the severe apartheid that existed in this country until the 1960's. The history of extreme apartheid in this country is apparently being omitted from public school history books and high school civics courses. Apartheid is a government law, policy, or legal system of segregation and discrimination on grounds of race. Apartheid in this country was not abolished by law until 1964 with the passage of the Civil Rights Act of 1964.

You may read more about apartheid in the United States that lasted for almost century, Black Forced Labor and the Black Codes Post 14th Amendment on this website in the November 11, 2020 article, and The 1936 Green Book: The Black Travelers’ Guide to Jim Crow America published on November 17, 2020, and Black involuntary servitude and poll taxes during US apartheid in the November 24, 2020 article.   

For US apartheid subsequent to Brown decision, see Post Supreme Court Brown v. Board of Education, Apartheid Continued published Oct 27, 2020 on this website, Also, you may read, Apartheid Subsequent to the 14th Amendment published Oct. 13th, 2020. See also Dec. 15, 2020 article, Voter Suppression and Literacy Tests Administered into the 1960's.

In Brown v. Bd. of Educ., the US Supreme Court found that segregation by race had no place in public education. It found that segregation by race was a denial of the equal protection of the laws under the Fourteenth Amendment and that separate school were inherently unequal.

It took 86 years after the ratification of the 14th Amendment to the Constitution, for the US Supreme Court to overturn the Plessy v. Ferguson decision. You may read about the history of apartheid and civil rights leading up to the US Supreme Court’s decision in Brown v. Board of Education in the Oct. 6, 2020 article entitled Post Civil War Apartheid and Jim Crow.

Apartheid, euphemistically known as “Jim Crow” in the United States, began in the 1870's post slavery at the end of the period of Reconstruction. “Jim Crow” laws were government mandated racial segregation in all public facilities in the states of the former Confederate States of America and in some border states and other states. Jim Crow laws were outlawed, theoretically in 1964 with the Civil Rights Act, although some still were in effect.

Jim Crow was more than almost a century of the enforcement of harsh anti-black laws,  it was more than Government laws ordering segregation by race restricting every aspect of a Black person’s life. Jim Crow was a way of life. It was a culture embodying beliefs and ideologies of the superiority of one race over the other in every aspect of their being.

LOVING V. VIRGINIA

Loving v. Virginia, 388 U.S. 1, decided June 12, 1967, expanded a person’s right to marry. It ruled that the right to marry a person of one’s own choice was a fundamental right, even in interracial marriage. In Loving v. Virginia, the Court did not restrict the autonomy and freedom of an individual; rather it expanded an individual’s personal autonomy and freedom of choice.

In Loving v. Virginia in 1967, which legalized interracial marriage, the US Supreme Court ruled that a state statute that bans interracial marriage, violated the constitutional rights of the individuals. Loving v. Virginia concerned the validity of the Virginia antimiscegenation statutes, which are the strict prohibition of a "white person" marrying any person other than a "white person." In this case, a husband and wife, sought review of a judgment from the Supreme Court of Appeals of Virginia which held that Va. Code Ann. §§ 20-58 and 20-59, which were adopted to prevent marriages between persons solely on the basis of racial classifications, did not violate the Equal Protection and Due Process Clauses of U.S. Const. amend. XIV.

The husband, Richard Loving, a "white person," and his wife, Mildred Jeter, a "colored person," within the meanings of those terms in the Virginia statute, were both residents of Virginia. They were married in the District of Columbia according to its laws. Shortly thereafter, the Lovings  returned to Virginia, where, upon their plea of guilty, they were sentenced, in a Virginia state court, to one year in jail for violating Virginia's ban on interracial marriages. Their motion to vacate the sentences on the ground of the unconstitutionality of these statutes was denied by the trial court. The Virginia Supreme Court of Appeals affirmed their convictions and the validity of the antimiscegenation statutes, which had restrained the personal autonomy and freedom of interracial couples who wanted to marry. See 1936 Green Book: The Black Travelers’ Guide to Jim Crow America published here on November 17, 2020.

On the Lovings’ appeal to the US Supreme Court, the Court reversed the judgment of the appellate court which had upheld the constitutionality of the Virginia state statutes and had affirmed the Lovings’ convictions. In a unanimous decision,  the opinion by Chief Justice Earl  Warren expressed the view of all members of the court, and held that the Virginia statutes violated both the equal protection and the due process clauses of the Fourteenth Amendment. The Court rejected the notion that the mere "equal application" of a statute containing racial classifications was enough to remove the classification from the Fourteenth Amendment of the US Constitution’s proscription of all “invidious racial discriminations” and held there was no legitimate overriding purpose which justified the classification. The Court found that restricting the freedom to marry solely because of racial classifications violated the central meaning of the Equal Protection Clause and deprived appellants of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.

The Court noted that, “ The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages......Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period.”

On June 12, 1967, the Supreme Court issued the now famous unanimous 9–0 decision in favor of the Lovings that overturned their criminal convictions and struck down Virginia's anti-miscegenation laws. Loving v. Virginia expanded individual rights and an individual’s personal freedom, giving individuals more rights to personal autonomy free of government restrictions on their choices and autonomy.

Other cases (which will be discussed more in depth in the next article) where the Supreme Court overturned precedents to expand, rather than severely restrict an individual’s personal autonomy and freedom of choice, are:

West Virginia State Board of Education v. Barnette, 319 U.S. 624, (1943)

Lawrence v. Texas 539 U.S. 558 (2003)

Obergefell v. Hodges 576 U.S. 644 (2015)

What You Can Do If You Experience Discrimination

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were subjected to racial harassment and retaliation in the workplace and/or were fired. If you have experienced racism at work, or if you reported it and no action was taken, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.

 


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