Sometimes there surfaces a sliver of hope from the most unusual places.
The Texas abortion law maybe challenged according to a Constitutional precedent thanks to a little bar in Massachusetts, Grendel's Den.
And in 1982, in fact, in an 8-1 decision authored by the chief justice, the United States Supreme Court sided with the bar, they sided with Grendel`s Den. Nothing against the church, of course, but the Supreme Court ruled that Massachusetts had crossed into unconstitutional territory when it, quote, delegated to private nongovernmental entities a power normally invested in agencies of government. The court said by doing that, the law substituted the church`s own views, whatever they may be and regardless of what they`re based on, the church substituted the church`s own motivations to act, quote, for the reason decision making of a public legislative body acting on evidence and guided bystanders on issues with significant economic and political implications.
In other words, nobody has got a right to have a liquor license. That was not what was at issue here. What was at issue here was that the government, the state, can`t let some random entity, a church, a school, some other private entity make that decision. It`s a governmental decision. You cannot delegate it to a private entity to make that determination for its own purposes. That is standing Supreme Court precedent from 1982, again, 8-1 decision.
Today, the very published, very famous Harvard Law professor who took that Grendel`s Den case back in the day, who took it all the way into the United States and won today, that professor, his name is Laurence Tribe, has sort of set off a flare warning that the Texas abortion ban that the U.S. Supreme Court let pass into law last week, he said that`s basically the Grendel`s Den case all over again.
Quote: As with the Massachusetts liquor law, the Texas abortion law delegates quintessentially governmental power to private parties. But this time, it`s a state delegating authority to a church, who decides who gets a liquor license, this time the state delegating authority to -- as he puts it, quote -- literally anyone on earth with an objection to abortion, giving that individual or organization the unilateral and unfettered power to inflict punishment on whoever assists a woman in terminating a pregnancy.
Laurence Tribe says that Supreme Court precedent that he pursued and won in 1982, the way he won that case for that bar in Cambridge can be the undoing of the Texas abortion ban as well. Now, how exactly it has to go for that strategy to work, who has to bring the lawsuit and when and against whom? That itself is obviously very important to this as a strategy.
Transcript: The Rachel Maddow Show, 9/7/21 (msnbc.com)
