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Unbiased University: Everything You Need to Know About Separation of Church and State and Due Process
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I don't know about you, but when I'm doing my spring cleaning around the house, I will be wearing my Sherpa Sunday slippers that feel like walking on clouds. They make cleaning just a little more enjoyable, you know, and I can't recommend them enough. Head over to bombus.comunbiased and use code UNBIASED for 20% off your first purchase. That's B O M b-s.comunbiased code UNBIASED at checkout welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased Politics and to the Unbiased University series. In today's episode, we are going to be covering two constitutional topics that we hear about all the time in politics and political debate, and those are separation of church and state and due process. These two ideas show up constantly in the news, whether we're talking about schools, religion, bodily autonomy, or whatever it is. And understanding them is critical if you want to understand how the Constitution actually works in practice. So today we're going to break down each concept the same way that we've done in previous episodes, and we'll talk about, you know, not only what the Constitution actually says about these concepts, but also why the Framers cared about including these concepts, how they've evolved over time, and how the Supreme Court applies them today. Because, as we've learned in the last few episodes, the Supreme Court plays a major, major, major role in interpreting the Constitution. It is how we go from this founding document that really didn't include much, okay, it included our basic rights. And like the basic rules for, for how our government was to function. But the Supreme Court is what has told us over the last 230 years or so how the Constitution actually applies. Now, up until this point, we have covered the Constitution itself. We've also covered the first 10amendments to the Constitution, otherwise known as the Bill of Rights. And we've done that in pretty significant detail. If you have not yet listened to the first four episodes in this series, I highly recommend listening to those episodes first. Or at least, at least the first two episodes and then listening to this one. It's not a requirement. Okay, like you're still going to learn a lot in this episode. You're. But those first two episodes will give you some pretty important context for today's episode. As a reminder, this Unbiased University series is designed to function like a condensed law school education, right? I want you to imagine that every time you are tuning into one of these episodes, you are sitting down in a law school class with me as your professor. And in each class we cover a different topic. We talk about various cases and laws that have shaped those topics. And it's just a highly informative yet get condensed and fast paced education. So if you've ever wanted to go to law school, if you've ever considered going to law school, you are going to love this series by the end of it. What I like to say is that you will have obtained your imaginary degree from Unbiased University, which means that you will be fully prepared for when unbiased politics resumes normal operations. And. And I'm back from maternity leave and I'm back to reporting on current events because all of these concepts that we're talking about in each of these episodes, the Constitution, the Bill of Rights, the branches of government, the Supreme Court, presidential elections, et cetera, et cetera, et cetera, are all in the background of every single current event that we talk about. So it's really important that we understand these concepts. So now, without further ado, let's start this episode talking about the separation of church and state. State. First and foremost, the. The. The Constitution does not actually include the phrase separation of church and state, okay? It is not something that the Framers explicitly put into the Constitution. We get this concept from the two religion clauses of the First Amendment, as well as a letter that was written by Thomas Jefferson back in 1802, okay? So when we look specifically at the Constitution, we have the establishment clause of the First Amendment which says that the government cannot establish a religion for the country. And then we also have the free exercise clause of the First Amendment, and that says the government cannot prohibit religious exercise. In 1802, which was some years after the Constitution was ratified, not, not too long after, but decent amount of time after, Thomas Jefferson wrote a letter to the Danbury Baptists, okay? And this was a letter in response to a congratulatory message that he had received from the Danbury Baptist association in Connecticut. Once he was elected president, the Danbury Baptist association wrote to Thomas Jefferson not only to congratulate him, but also to express their concerns about religious freedom in their state. So at the time, a lot of states still had these officially supported churches or systems that favored certain religious denominations. And in Connecticut, the dominant Congregationalist church had the government's support. So minority groups like the Baptists were worried that their religious liberty was too dependent on government tolerance. And because of that, the Danbury Baptist wrote to Thomas Jefferson, who is now president, and they wrote one, about their concern that religious liberty was being treated as a privilege granted by the government rather than as a natural right. And two, they wrote with hope that the federal government would protect freedom of conscience or the right to decide what, what they believe and don't believe. So they write this letter to Thomas Jefferson. And in response to that letter, Jefferson writes in part, quote, believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions. I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion or, or prohibiting the free exercise thereof, thus building a wall of separation between church and state, end quote. So Jefferson's letter was definitely influential, okay? But at the time that it was written in 1802, it wasn't necessarily a legal standard or established legal constitutional doctrine that there was a, a separation between church and state. He just wrote about this, you know, metaphorical wall that had been put up because of the two clauses in the First Amendment, the establishment clause and the free exercise clause. Because also keep in mind that in the early days of the country's founding and the Constitution, the amendments, including the First Amendment, only limited the federal government, okay? It did not limit the states. So a lot of states still had these tax supported churches or religious preferences. It wasn't until the 14th amendment was ratified in 1868, which, to give you an illustration of that time frame, that's what, 66 years after Thomas Jefferson wrote that letter, that Amendments started applying to the states just as they applied to the federal government. And basically what the 14th Amendment said in part was that no state could. Could deprive any person of life, liberty or property without due process of law. And over time, the Supreme Court interpreted that word liberty to include a lot of the rights listed in the Bill of. In the Bill of Rights. And when. When the court applies one of those rights to the states, that right is said to be incorporated. And that's how we got this doctrine of incorporation, which you'll hear me reference the doctrine of incorporation. That is. That is what I'm talking about. I'm talking about the doctrine that allows the Constitution and the amendments to be applied to the states. And the reason I'm telling you this is because we're talking about this letter that was written by Thomas Jefferson in 1802 that was the first mention of separation of church and state. But at that time, it didn't become this constitutional doctrine. The amendments and the Constitution were not applying to the states in the same way that the federal government was. And there wasn't enough Supreme Court precedent to establish this doctrine that Jefferson spoke of, which was the separation of church and state. That didn't come till later. So to give you kind of a time frame, one of the. One of the key early cases that utilized this doctrine of incorporation that we're talking about was in 1925, and it said that freedom of speech applies to the states through the 14th Amendment. But the modern legal meaning of separation of church and state didn't arise until 1947. And that was in a Supreme Court case called Everson vs. Board of Education. And at this point is when we're going to get into these Supreme Court cases that have shaped this idea of the separation of church and state. But I want to be very clear, Separation of church and state is not a constitutional doctrine in the sense that it's written into the Constitution. It's something that has been interpreted by the Supreme Court, you know, really starting in 1947. So it's relatively recent. But. But it's because of the free exercise clause and the establishment clause in the Constitution, as well as Thomas Jefferson's interpretation of those two. Those two clauses. So I just want to make that, that, that part of this discussion very clear before we get into the Supreme Court cases that, you know, really created what separation of church and state means. So let's start with this 1947 case called Everson vs. Board of Education. And basically a New Jersey law allowed reimbursement by Local school boards of the cost of transportation to and from schools, including private schools. And 96% of the private schools who benefited from this law were parochial Catholic schools. So a man named Arch R. Everson, who was a taxpayer in New Jersey, filed a lawsuit alleging that this law, law, this indirect aid to religion, violated not only the New Jersey State constitution, but also the first amendment of the United States Constitution. And the case eventually makes its way up to the Supreme Court. And the justices in a close 5 to 4 decision say, no, no, no, no, the law doesn't violate the Constitution. Justice Black wrote the opinion for the majority. And he explained that because the law didn't pay money to parochial schools or support them directly in any way, and because the law was intended to help parents of all religions with getting their children to school, the law was fine. It didn't, it didn't violate the Constitution. Before reaching that decision, though, the court had laid out these limitations imposed by the first Amendment to kind of lay the groundwork for what they were working with. And the court wrote, quote, the establishment of religion clause in the first amendment means at least neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will, or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs for church attendance or non attendance. Neither a state nor the federal government can openly or secretly participate in the affairs of any religious organizations or groups and vice versa. The opinion of the court then goes on to cite Jefferson and says in the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state. And that was the first time that the Supreme Court recognized this modern, modern day concept of the separation of church and State in 1947. Okay, so like I said, fairly recently compared to this country's history. From that point, the court, the Supreme Court began developing these tests to determine when government involvement with religion crossed the constitutional line. And in the 60s and 70s, the court struck down more and more government religious involvement, especially when it came to schools. The court struck down school sponsored prayer, the court struck down mandatory Bible readings. And the court created what's known as the Lemon test. Okay, so this all happened in the, around the 60s. The Lemon test comes from an early 1970s case, 1971, called Lemon vs Kurtzman. And the case arose from laws in Pennsylvania and Rhode island that provided state funding to certain non public, often religious schools. Pennsylvania reimbursed schools for teacher salaries for textbooks for instructional materials for non religious subjects, while Rhode island supplemented a portion of teacher salaries at non public elementary schools. Ultimately, the court struck both of those laws down and created this three part test to determine whether a law violates the establishment clause of the Constitution. So under the Lemon test, first, the law has to have a non religious purpose, otherwise known as a secular purpose. Second, the law's primary effect has to be one that neither advances nor inhibits religion. And third, the law cannot foster excessive government entanglement with religion, okay? If it, if it passes all three of those prongs, the law can survive. And for years, courts solely relied on this Lemon test to figure out whether government actions improperly supported religion. But then we got the coercion test, and that was in a 1992 case called Lee vs. Weissman. So a Rhode island middle school principal invited a rabbi to deliver an invocation and benediction at the school's graduation ceremony. And the school gave the rabbi specific guidelines and suggested that the prayers be, you know, non denominational, not affiliated with any one religion. But one of the parents had an issue with, with the rabbi and tried to stop the, the tried to stop this in court. And the parent argued that including rabbi led prayer at a public school ceremony violated the establishment clause of the Constitution. The graduation ceremony goes ahead anyway. The family proceeds with their lawsuit even after the graduation ceremony because they wanted to prevent a similar situation in the future. And the court for the, the, the question for the court became whether including clergy led prayer as part of an official public school graduation violates the establishment clause of the constitution. And the Supreme Court said yes, because the government's involvement in organizing and directing this prayer places subtle coercive pressure on students to participate in a religious exercise. And this case was really a defining moment in the law when it comes to religion in schools because the court established this coercion test which really simply just asks whether the government coerced individuals into, to, to participate in religion or a religious exercise, whether it be through social pressure, psychological pressure, maybe it's just a situation where people feel compelled to conform to avoid standing out, especially in the school setting. So in Weissman in 1992, even though the court said the pressure was subtle, it was pressure nonetheless. And this violated the establishment clause. It's also important to note that the coercion test didn't replace the Lemon test. Okay? It instead it Sort of shifted the analysis, because a government practice could sometimes appear neutral under the Lemon test, but still be unconstitutional if it had the effect of pressuring individuals to participate in religious activity. So by the early 90s, the Supreme Court was evaluating Establishment clause cases using multiple analytical approaches, most notably the Lemon test and the coercion test, depending on the context of. Of the case. Right. Then in 2002, the Supreme Court decided a case called Zelman vs. Simmons. Harris. Ohio had created this school voucher program that was designed to help students in. In the Cleveland public school system attend better schools. And the program gave tuition aid to parents who could then choose to use those funds at participating public or private schools. Because a big percentage of the participating private schools were religiously affiliated. A lot of the voucher recipients ultimately use those funds at religious schools. So taxpayers challenged the program. They argued that it effectively directed government money to religious education in violation of the establishment clause. And the Supreme Court said no. It said the voucher program did not violate the establishment clause because the program was religiously neutral and provided aid directly to parents who then decided to where to use the funds. The court explained that any government funds reaching. Reaching religious schools resulted from private choice and not government endorsement of religion. And this is where we saw the first private choice principle arise. So government programs that are neutral toward religion and distribute aid through independent private decisions can be constitutional, even if religious institutions ultimately receive funds. Okay. And then in 2022, the court decided a case called Kennedy vs. Bremerton School District. A high school football coach in Bremerton, Washington, would kneel and pray at midfield after games. Students would sometimes go on the field and join him. Not always. Sometimes. And the school district ended up getting worried that the coaches on the field prayers could be interpreted as school endorsement of religion. So the school actually told the coach to stop doing this, stop praying in a way that involves students, or appeared to be connected to his. His official duties as coach. But the coach continued to pray anyway, and the school district ultimately placed him on administrative leave and. And eventually chose not to renew his coaching contract. Well, the coach sued, arguing that the district violated his rights under the free speech clause and the free exercise clause of the first amendment. And the Supreme Court agreed. The court held that the coach's prayers constituted private religious expression, not government speech, and that the district's actions burdened his protected rights to free speech and free exercise of religion. And the court also said the school's establishment clause concerns did not justify restricting the coach's personal religious conduct. And the court emphasized that The Establishment Clause analysis should be guided by historical practices and understandings rather than strict reliance on the Lemon test. So this case was significant because it further shifted the Establishment Clause analysis away from the Lemon test and toward an approach focused on historical tradition, which is something we talked about in the Second Amendment episode as well. Nowadays, the Court uses this same historical tradition approach in evaluating firearm regulations. So, as you can probably see, over time, the Supreme Court has continued to redefine how separation of church and state should be analyzed. First, it was the Lemon test. Then it supplemented the Lemon test with the coercion test. And more recently, the Court has increasingly evaluated establishment clause questions by looking at the country's historical practices and traditions. And that's where we're at today. So whenever you see a religious case make its way through the courts, that's typically how they're analyzing it, is, you know, what are. What are our country's historical practices and traditions? What do they allow? What do they not allow? And that's where. That's where they're placing the focus of their analysis. So that's a little bit about how separation of church and state has evolved over time. Again, just to recap here, separation of church and state is not a principle that is explicitly laid out in the Constitution. It is something that has been created by the Supreme Court since about the year 1947. And in, you know, figuring out how do we apply this principle, how do we apply. How do we figure out if the government is overstepping? How do we figure out if the government is. 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To claim, visit article.comunbiased and the discount will be automatically applied at checkout. That's article.comunbiased for $50 off your first purchase of $100 or more. Welcome back. Before the break, we covered separation of church and state. And now it is time to move on to due process. Due process is the constitutional principle that the government has to follow fair procedures while also respecting certain fundamental rights. Okay, now due process can feel a little confusing because it does appear in two places in the Constitution. So there is the the due process clause of the Fifth Amendment and there is the due process clause of the 14th Amendment. But it's really not that confusing. So I want to try to break it down as simply as I can before we dive into the nitty gritty here. The Fifth Amendment requires due process from the federal government. The 14th Amendment requires due process from state governments. Both the Fifth and 14th Amendments say no person shall be deprived of life, liberty, or property without due process of law. It's just that when the Fifth Amendment was ratified, the Constitution and early amendments only applied to the federal government, meaning the states were not yet bound by those same constitutional limits. It wasn't until roughly 100 years later that Congress and the state said, okay, now that the Civil War is over, we gotta place the same constitutional limits on state governments to prevent overreach. And that is what they did with the 14th amendment. So both again, both the 5th and 14th amendments say the same thing regarding due process. One just applies to the federal government. The other applies to state governments. Now, in addition to that, there are two main types of due process. There's procedural due process and then there's substantive due process. Procedural due process focuses on fair procedures. As the name implies, substantive due process focuses on fundamental rights. Okay, so in other words, procedural due process focuses on how the government acts. Substantive due process focuses on what the government is allowed to do so. Procedural due process says the government has to take certain actions before it takes away someone's liberty or property. For example, it has to notify a defendant of their charges before detaining them. It has to provide defendants with a meaningful opportunity to be heard before sentencing them. It has to provide defendants with an impartial decision maker, AKA a judge. It has to obtain a warrant before searching your property to things like that. It's all related to fair, fair procedures. Substantive due process stands for the idea that certain rights are so fundamental that the government cannot infringe them without some sort of strong justification, even if it uses fair procedures. And under this substantive due process doctrine, courts have recognized certain fundamental rights that are not explicitly listed in the Constitution. So these are things like parental rights, marriage rights, bodily autonomy. But substantive due process is actually one of the most debated areas in constitutional law. And we'll talk about why in a minute. But first, what I want to do is I want to illustrate the distinction between procedural due process and substantive due process and how each gets applied through the Fifth and 14th Amendments. So let's say a state government. Let's just say New Jersey, okay? New Jersey. An agency within the New Jersey government takes away a restaurant owner's business license without telling them why, without giving them a hearing or an opportunity to challenge that decision. The owner of the restaurant could sue New Jersey claiming a 14th Amendment procedural due process violation. Because the issue is that the state, not the federal government, the state, state failed to produce or failed to provide fair procedures before taking away a property interest, in this case the business license. Now imagine the federal government does the same thing. A federal agency takes away a federally issued license without notice or a hearing. In that situation, the business owner would bring a fifth Amendment procedural due process claim because the same procedural protections apply. But. But this time the action is coming from the federal government rather than a state. Now, if we look at substantive due process, imagine that again, we'll take New Jersey. Imagine New Jersey passes a law that prohibits parents from sending their kids to private schools and requires all children to attend only government run public schools. Okay? Parents could challenge that law as a 14th amendment substantive due process violation because the issue is that the state is potentially infringing upon a fundamental liberty interest by telling parents how they have to raise and educate their children. So the problem is not procedure, right? It's not. It's not what procedure the government used. It's that the government shouldn't have the power to impose that kind of rule in the first place. It's A fundamental right. And that's why it would be challenged as a substantive due process violation under the 14th Amendment, because it's a state. And then again, if you imagine the federal government enacted a similar law, the parents would then challenge that as a fifth Amendment substantive due process violation because the action is the same. It's just coming from the federal government rather than a state. So it comes from the Fifth Amendment rather than the 14th. So hopefully that that helps illustrate how due process is applied via the fifth and fourteenth Amendments and, and how procedural due process and substantive due process differ from one another. Speaking of substantive due process, though, I mentioned that it is one of the most debated areas of constitutional law. And the reason for that is that it involves the courts deciding which rights are so fundamental that the government cannot infringe them, even when those rights aren't explicitly written in the Constitution. Okay, that that's actually what substantive due process is. These rights are not listed in the Constitution. They are not written in the Constitution. It is the courts creating them. Because the Due process clauses of the fifth, Fifth and fourteenth Amendments explicitly protect life, liberty, and property, but they don't define exactly what liberty includes. Courts over time have taken it upon themselves to interpret what liberty means, and they've interpreted liberty to include certain rights that are not listed in the Constitution yet are so fundamental. Supporters of substantive due process argue that, you know, the Constitution was written broadly to, to protect fundamental freedoms that can't possibly all be listed, and therefore we need the courts to interpret some rights that exist outside of what's explicitly listed in the Constitution. But then you have critics of substantive due process who argue that judges are effectively creating constitutional rights out of thin air, rather than doing their job, which is to interpret the text of the Constitution as it is written. Procedural due process is not nearly as controversial because, number one, it focuses on fairness and how the government acts, not on. Not on whether the government should have the power to act in the first place. Number two, it has very, very, very deep historical roots in the Magna Carta, which is the legal document that established individual liberties way back in the year 1215. So procedural due process is a very, very well established idea. And three, procedural due process doesn't require courts to decide what rights are fundamental. It just asks whether the government followed fair procedures. So for those reasons, procedural due process is pretty set in stone, not nearly as controversial and subjective as substantive due process due process. With that in mind, let's talk about some of the more controversial substantive due process cases. And we'll start with a case called Griswold versus Connecticut in 1965. So Connecticut passed this state law that made it a crime for anyone to use contraceptives and. Or assist others in using contraceptives. And when I say contraceptives, I'm talking about anything that is used for the purpose of preventing contraception. Condoms, birth control, spermicides, IUDs, et cetera. Well, the executive director of Planned Parenthood, Estelle Griswold, and a physician that was working with her opened up a clinic that provided married couples with contraceptive advice and prescriptions. Because of this law, they were arrested and convicted. So they went ahead and challenged this law as unconstitutional. And. And the question for the Court was whether a state law banning the use of contraceptives by married couples violates the Constitution. And the Supreme Court said yes. The Court held that the law violated a constitutional right to marital privacy. And the Court explained. The Court said, look, the Constitution doesn't explicitly mention privacy, okay? But certain provisions of the Bill of Rights create zones of privacy, which are areas of personal life where government intrusion is limited. So basically, the Court said that certain constitutional protections, like those guaranteed in the First, Third, Fourth, and Fifth Amendments, imply this broader principle of. Of personal autonomy. And these protections taken together form these constitutional zones where people are entitled to freedom from government interference. And marriage, the Court said, is one of those protected private relationships, and government intrusion into the marital relationship violated those protected liberties. Now, the decision in Grizzled was controversial because the Court was basically creating this right to marriage through a right to privacy that is not mentioned in the Constitution. So critics argued that the Court created this constitutional right that's not written in the text of the Constitution. But. But supporters argued that the Constitution protects fundamental liberties even if they're not specifically listed, and that even the Framers acknowledge not all rights are going to be listed in the Constitution, but that doesn't mean we don't have them. So Griswold, yes, was controversial, but it also laid the groundwork for other substantive due process cases, like Roe vs. Wade. The court heard Roe vs. Wade in 1973, roughly eight years after it decided Griswold Texas, had passed a law that made it a crime to perform or obtain an abortion, except when necessary to save the life of the mother. And a woman using the pseudonym Jane Roe challenged the law, arguing that the Constitution protected a woman's decision to terminate a pregnancy. It was in her right to privacy under the 14th Amendment, under substantive due process of the 14th Amendment. And the Court agreed. The Court held that the right to Privacy includes a woman's decision whether to terminate a pregnancy. But what the Court did in Roe is actually create this trimester framework. So the Court said during the first trimester, the decision to terminate a pregnancy had to be left primarily to the woman and her doctor. States generally could not ban abortions this early. They could only impose very limited regulations related to medical safety. During the second trimester, states, states could start regulating abortion as long as it was to protect the health of the pregnant woman. But still, at this stage of pregnancy, states could not ban abortions outright during the third trimester once the fetus is viable. States were, were allowed to ban abortions so long as the law included exceptions for the life of or health of the mother. Now again, this was another controversial substantive due process case for the same reasons as Griswold critics argued. The Constitution does not explicitly mention abortion at all, or even a right to privacy. And the Court kind of just came up with this new constitutional right. Supporters, on the other hand, argued that the Constitution protects these fundamental personal liberties that are not explicitly listed. So that's, that's the basis that Roe vs Wade was decided on. This is a story I like to tell everyone about Roe versus Wade. So Justice Ginsburg was a liberal justice who later served on the Supreme Court and very much so supported abortion. Okay, she wasn't on the court when Roe vs Wade was decided, but she sat on the bench later and she was very outspoken about the fact that she did not like the way Roe was decided because she was skeptical of its foundation. She didn't like that it was rooted in substantive due process. She felt it was shaky ground for all of the reasons that we're talking about right now. She felt that rather than abortion rights being grounded primarily in substantive due process and privacy, that a stronger and more stable constitutional basis would have been the Equal Protection Clause because as she argued, she said the laws restricting abortion also involved this sex based inequality because they limited women's autonomy and participation in society, and because the Equal Protection Clause is actually explicitly written in the Constitution. She felt this would have been a much better and more stable way to decide Roe than substantive due process. So I like to tell that story because it illustrates that even a Justice who supported a right to abortion in acknowledged this, this unstable nature of substantive due process. And we'll, we'll talk more about substantive due process and Roe versus Wade when we talk about the case that eventually overturned Roe versus Wade in just a few minutes. But before we get there, we have to talk about Obergefell versus Hodges. Now, this was a 2015 case that recognized a constitutional right to same sex marriage. So across the country, various state laws banned same sex marriage or refused to recognize same sex marriages that were legally performed in other states. And a bunch of same sex couples from multiple states challenged these, these laws as unconstitutional. The lead plaintiff, James Obergefell, had married his husband in Maryland, but then when they went back to their home state of Ohio, Ohio wouldn't recognize their marriage on official records. So they sued and they argued that these state laws, you know, the laws that, similar to the one Ohio, had violated the 14th Amendment. And the question for the Court was whether the 14th Amendment requires states to license marriages between two people of the same sex and recognize same sex marriages that were lawfully performed in other states. And the Supreme Court said yes. The Supreme Court held that the 14th Amendment guarantees same sex couples the fundamental right to marry. And, and therefore states have to license same sex marriages and recognize same sex marriages performed in other states. This decision was rooted in both the Due Process clause, okay, substantive due process, and the Equal Protection Clause. And as we just discussed briefly, the Equal Protection Clause prohibits unjustified, equal, unequal treatment. That is what Justice Ginsburg wanted Roe decided on. But Roe was only decided on substantive due process. So Obergefell was decided not only on substantive due process grounds, but also equal protection grounds. And that's something I want to emphasize, because when Roe v. Wade was overturned, Justice Thomas wrote in his concurrence that the Court should now reconsider the entire doctrine of due process. He, he specifically called out the decisions in Griswold Lawrence, which is another Supreme Court case, and Obergefell. So naturally, when people read Thomas's concurrence or heard about Thomas's, Thomas's concurrence, they were like, oh my, oh my God. Same sex marriage, contraceptive rights, all these things are going to be overturned. But I want to be clear that what makes same sex marriage different is that it was decided on not just substantive due process grounds like Roe versus Wade and Griswold. It was also decided on equal protection grounds. And as we've said a couple times now, equal protection grounds, much, much stronger foundation. So same sex marriage is less vulnerable than Roe because the decision relied on both of these things. And we'll, we'll cover equal protection in tons of detail in the next episode, but that's just something to keep in the back of your mind. So, so next time you hear someone say the right to abortion was overturned, so same sex as marriage is next, you can just show off some knowledge and say, well, there's actually a difference between the two issues because one was based only on substantive due process grounds, whereas the other was grounded in substantive due process and equal protection, giving it stronger footing. Then you'll look really smart. And by the way, I, I also want to be clear about the fact that I'm not here to say same sex marriage will never, ever get overturned. Okay. Anything can happen. I would never say never. I'm just here to say the right to same sex marriage is not equal to the right to abortion when it comes to vulnerability. Okay, then finally, we have to talk about Dobbs vs Jackson women's health Organization in this substantive due process discussion. Dobbs v. Jackson Women's Health Organization was decided in 2022. It was the case that overturned Roe versus Wade. So Mississippi enacted a law that banned most abortions after 15 weeks of pregnancy, with some exceptions for medical emergencies and severe fetal abnormalities. Now, as we talked about in Roe, the Supreme Court precedent at the time said states could not ban abortions before the third trimester. So the state's only abortion clinic, Jackson Women's Health Organization, challenged the law as unconstitutional. But Mississippi defended the law by asking the Supreme Court to overturn its earlier abortion precedent, arguing that a right to abortion does not actually exist in the Constitution. So the question for the Court was whether the Constitution confers a right to abortion that limits the ability of the states to prohibit abortions before fetal viability right. And the Supreme Court said no. The Court said the Constitution does not confer a constitutional right to abortion and said the the authority to regulate abortion should go back to state legislatures and Congress rather than governed by this nationwide constitutional precedent grounded in substantive due process. So earlier abortion decisions had held that abortion was protected as part of this broader constitutional right to privacy and liberty under substantive due process. But the Court in Dobbs said those decisions had improperly expanded substantive due process by recognizing a right that was not historically grounded in in the same way as other fundamental liberties previously recognized by the Court, like the right to marry, parental rights, and the right to travel. Historically, the Court has said that certain rights not explicitly mentioned in the Constitution can qualify as fundamental if they are 1 deeply rooted in the nation's history and tradition, and 2 implicit in the concept of ordered liberty, which basically means the right is so fundamental to a free and functioning society that the Constitution protects it even if it's not explicitly mentioned. And if it meets those two prongs, that's where we kind of create a right based on substantive due process. So in, in utilizing that two pronged framework, the Court in Dobbs said a constitutional right to abortion didn't meet those criteria because abortion had been regulated or prohibited in many states for a long time. It it wasn't this right that was deeply rooted in, in the country's history and tradition. As we know, Dobbs was a very controversial decision, just like its predecessor wrote, just like other substantive due process cases. So those are the fundamental aspects of due process. The three main takeaways from this discussion of due process are the following. Number one, at its core, due process is the principle that the government has to follow fair procedures while also respecting certain fundamental rights. Two Fifth Amendment due process binds the government, the 14th Amendment binds the states. And then three, there's procedural due process and then there's substantive due process. Substantive due process is much more controversial for all of the reasons we talked about. Procedural due process much less controversial. Procedural due process has to do with fair procedures. Substantive due process has to do with certain fundamental liberties. And that is what I have for you. I really hope you enjoyed yet another class at Unbiased University. I hope you've learned a ton about separation of church and state and due process. Obviously, as I've mentioned before, this is a condensed law school education of sorts, so we can't possibly cover everything. But I hope you feel a lot more knowledgeable than you did when you hit play on this episode. Thank you so much for being here. I hope to see you in the next class where we will dive into the evolution of equal protection.