After Roe, architect of Texas abortion law sets sights on gay marriage
Dallas – If Jonathan Mitchell were a comic book character, he would be drawn holding a lawbook in one hand and in the other, a sledgehammer.
Best known as the architect behind Senate Bill 8, the state law that deputizes everyday Texans as abortion bounty hunters, Mitchell has spent years arguing that the U.S. Supreme Court should reverse its decision in Roe v. Wade. His legal theories and court cases helped lay the groundwork onto which the ruling came toppling down.
But as the rest of the country was bracing for the fall of Roe, Mitchell was already moving on. Since opening up a one-man legal shop in Austin four years ago, he has jumped headlong into myriad other lawsuits over everything from the contraceptive mandate to affirmative action and same-sex marriage.
Mitchell says his goal is to systematically dismantle decades of rulings he believes depart from the language of the U.S. Constitution or that impose constitutional rights with no textual basis. With the Supreme Court moving ever more his way, the cases he brings may be a bellwether for the direction of the nation’s legal establishment, and, by extension, the nation itself.
In a rare interview, the former solicitor general of Texas insisted that underlying his mission is not religious belief or political ideology or personal animus, but an unflinching conviction that federal courts must interpret the Constitution closely and cannot declare new rights not explicitly afforded in that document.
Mitchell sees himself in the role of redeemer – not destroyer.
“For decades, the Supreme Court has been making up constitutional rights that are nowhere to be found in the language of the document,” Mitchell, 45, told The Dallas Morning News. “These decisions are lawless, and they need to be undermined and resisted at every turn until the Supreme Court sees fit to overrule them.”
But where Mitchell sees himself as a devotee to the rule of law, his opponents detect an extremist. Regarded even by his harshest critics as an undeniably sharp legal mind, they fault him for, in their views, intentionally dismissing precedent and the real-world consequences of his actions in an effort to wipe a number of fundamental rights from the lawbooks.
A shift to textualism
When Mitchell threw his support behind Mississippi’s 15-week abortion ban, the case that toppled Roe, he urged the Supreme Court not to be squeamish about other rulings it might knock down.
Interracial marriage is protected under federal civil rights law even though it’s not specifically preserved in the Constitution, Mitchell wrote in an amicus brief co-authored by Chicago Law School chum Adam Mortara. The same could not be said for “the court-invented rights to homosexual behavior and same-sex marriage,” they argued.
Obergefell v. Hodges and Lawrence v. Texas, the rulings that declared bans on gay marriage and gay sex as unconstitutional, were “as lawless” as the abortion rulings, they wrote. If Roe were to be overturned, Mitchell and Mortara argued, the court should not hesitate to declare that these other rulings are likewise “hanging by a thread.”
Last month, Clarence Thomas said just that.
In a concurring opinion supporting the decision to overturn Roe, the conservative justice called Lawrence and Obergefell “demonstrably erroneous decisions” with no basis in the Constitution or U.S. history. He urged his fellow justices to “reconsider” them.
The judicial philosophy underlying the decision to overturn Roe is called textualism, a theory of interpretation that emphasizes a plain reading of legal documents based on their text. Mitchell is a strong adherent.
“If a constitutional right is not mentioned in the constitutional text, it doesn’t exist,” Mitchell said in a wide-reaching interview. “I don’t care how desirable it may seem as a matter of policy.”
His core belief in textualism is underscored by a concept Mitchell coined himself called the “writ of erasure fallacy.” Courts, even the highest in the land, can only stop certain laws from being enforced by certain defendants, his concept dictates; they do not have the power to “alter or annul” them.
This means Mitchell views nearly every Supreme Court ruling as strictly temporal – decisions that can be reversed if the right argument is made in front of the right set of justices. And by extension, any law that remains on the books, even if it is deemed unconstitutional by the high court, can be revived if the court changes its mind.
For example, Texas legislators have refused to remove the state’s bans on same-sex intimate relations and gay marriage and from the lawbooks even though they’re unenforceable. And last week, Attorney General Ken Paxton argued that abortions should be illegal in Texas immediately because the state never repealed an abortion ban enacted in 1925. The Texas Supreme Court ordered late Friday that the ban can be enforced immediately.
Just six years ago, at the time of Antonin Scalia’s death, the majority of Supreme Court justices adhered to an interpretation of the Constitution that looked at it as a living document and relied more on precedent. But the court has shifted and become more receptive to textualist arguments – even liberal justice Elena Kagan recently declared, “we’re all textualists now.”
This shift is one big reason Mitchell opened up shop in Texas. This is the moment, he believes, to pursue his goal of targeting decisions he considers based on improper interpretations of the Constitution. And with his experience in the state and its favorable tax laws, Austin is the place to do it.
The road to Texas
Raised in Pennsylvania, Mitchell attended Wheaton College, which bills itself as preparing students to “make an impact for Christ.” He went on to study law at the University of Chicago, where he graduated with high honors.
Mortara, his law school classmate, describes his longtime friend as “deeply thoughtful” and “moral,” a man lacking even one “unkind cell in his body.” He insists Mitchell has been horribly mischaracterized as some kind of a “Westboro Baptist guy” fixated on taking away people’s rights.
“He is very gentle,” Mortara said. “He is extremely polite and respectful to people of all backgrounds.”
At Wheaton, Mitchell majored in computer science, and friends say he approaches law with the same deliberate focus one might when tinkering with a machine. They throw around words like “genius” and “visionary” and “nerd.” He is punctilious, they say, uncompromising when it comes to rules and conduct, and with a heightened concern for morality and codes of conduct.
By way of example, one friend offered up the way Mitchell bills his hours. Most lawyers split their time on the clock into increments of six minutes. Mitchell breaks his down even further to ensure he’s not overcharging clients.
“He’s a happy warrior,” said Hiram Sasser, a longtime friend of Mitchell’s and executive general counsel of the conservative legal nonprofit First Liberty Institute. “He’s a formidable ally.”
After law school, Mitchell clerked for J. Michael Luttig and Scalia. He was there when the justice wrote one of his most memorable dissents to the 2003 Lawrence ruling declaring Texas’ ban on gay sex unconstitutional.
From 2010 to 2015, Mitchell served as Texas’ chief appellate lawyer under then-Attorney General Greg Abbott. He argued in front of the Supreme Court four times and defended the state’s laws against same-sex marriage and abortion. A member of the conservative legal organization the Federalist Society, he later taught law at Stanford and the University of Texas at Austin.
Then-President Donald Trump nominated Mitchell to head the Administrative Conference of the United States, an agency meant to improve federal rule-making and other processes, but he was not confirmed.
In 2018, as Trump appointed his second of three justices to the high court, Mitchell opened his own firm in Austin. It’s the first time he’s been in private practice.
Mitchell has thrown himself headlong into the abortion fight in Texas. He helped draft city ordinances that sought to outlaw abortion at the local level and had a hand in crafting Senate Bill 8, which empowers private citizens to sue anyone who “aids or abets” an abortion for up to $10,000.
The bill, which essentially bans abortion after about six weeks, became law in September. It was tested by the Supreme Court and allowed to stay in place.
Senate Bill 8 is now considered model legislation by other red states that may use it to deputize their citizens to enforce other conservative laws. Mitchell’s role in crafting the legislation catapulted him into the national spotlight.
But Mitchell hardly ever speaks to the media. He doesn’t appear to have any social media presence. There are only a handful of photos of him online and he would not consent to a portrait for this story. Even when Senate Bill 8 was passed into law, he wasn’t at the public signing ceremony.
Mitchell, married with children, says he does not have time for hobbies and sees no need to seek the limelight. His firm doesn’t issue news releases when it files new cases or marks a win.
The payoff comes in the victory itself.
Gay marriage cases
While Mitchell values his privacy, his work now appears to be everywhere.
He has his hands in cases from California to New York involving such disparate concepts as redistricting, subsidies for Black farmers and religious liberty. While there are a handful of conservative nonprofit law firms pursuing similar cases, with whom Mitchell at times works in tandem, he sees himself as stepping into a void where other private attorneys rarely dare to venture.
“The big law firms won’t touch this stuff. So it sometimes feels as though I have the field to myself,” Mitchell said.
At least two of the roughly 50 cases he is pursuing involve same-sex marriage.
In both, Mitchell argues that government employees with the power to perform marriages in Texas should be able to recuse themselves from performing gay weddings due to religious beliefs. One of the cases, which is awaiting a decision from the Fifth Circuit Court of Appeals, provides a preview of how Mitchell would argue for the reversal of Obergefell.
In a brief filed in June 2020, Mitchell argued that Obergefell improperly “subordinates” state law to “the policy preferences of unelected judges.”
“There is no constitutional right to same-sex marriage,” Mitchell argued on behalf of his client, a county judge who argues that his Christian faith prohibits him from marrying gay couples. Mitchell added: “The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights.”
That’s why their amicus in the abortion case that overturned Roe was purposefully provocative – in part to make Mississippi’s arguments appear more moderate in comparison and to give the high court the fortitude to declare that these rights had no basis in the Constitution.
“We wanted to show the justices that the entire edifice of court-invented rights should be rejected, because many of those rights — such as the rights to contraception and interracial marriage — are protected by other sources of federal law, so there is nothing to fear from repudiating the supposed constitutional basis for those rights,” he said.
Despite these cases, Mitchell said he is not trying to “dismantle” gay marriage.
If state legislatures want to pass laws legalizing it, they can, he said. But until the Constitution is amended to include the right to same-sex marriage, he argues that the Supreme Court wrongly decided this issue and the ruling is in play.
When asked about his personal views on the matter, Mitchell said he considers the policy to be “a much closer question” than whether same-sex marriage is a constitutional right.
“I’m a formalist and legalist by orientation,” he said. “Policy decisions are for the political branches to sort out.”
The problem, opponents say, is that there are real-world consequences.
The courts have long looked to reliance interests, or how people come to count on legal decisions in their everyday lives, when reconsidering rulings. Throwing these considerations out the window is not only legally impractical, it is also fundamentally foolhardy and ultimately damaging, said SMU Dedman School of Law constitutional law chair Dale Carpenter.
First of all, there are the millions of gay people who have been wed since Obergefell was decided, not to mention the children, wills and end-of-life plans affected by those unions.
What’s more, if the state revisits Obergefell and Lawrence because gay rights aren’t explicitly stated in the Constitution, what case is next? Contraception bans? Mandatory sterilization? Racial segregation in schools?
“I don’t think Americans are ready to confront those questions again in the name of a kind of dry textualism,” Carpenter said. “It would be a very stripped down notion of the national ‘floor’ on civil rights.”
What Mitchell is attempting to do is move the legal establishment and, eventually, the high court more in this direction, Carpenter added. This kind of ideological change is called shifting the Overton window, and it’s been a successful strategy among the far right since Trump’s election.
Charles Fried, the former U.S. solicitor general under President Ronald Reagan and a leading legal thinker, dismissed lawyers of Mitchell’s ilk as fringe actors.
“They’re not conservatives,” he said. “They’re reactionaries. They want to undo the last 100 years.”
Last fall, nearly 100 fellow Chicago law graduates condemned Mitchell’s involvement in writing the Texas abortion law in an open letter published online.
Mitchell played down some of the fears raised by his opponents. He is not worried, for example, about states outlawing contraception if that Supreme Court case is revisited because he said that right is protected by federal law.
But Carpenter warned about this way of thinking. Just a few years ago, it would have been unthinkable to say Roe would be overturned, so why shouldn’t proponents for women’s and gay rights be concerned?
“There might be a temptation to think of him as a jurisprudential gadfly,” Carpenter said. “But I do not think he can just be dismissed. He’s an intellectual force and that has to be respected.”
Mitchell has partnered with groups such as the nonprofit America First Legal Foundation, headed by Trump’s former hard-line immigration adviser, Stephen Miller. Among clients, Mitchell counts Steve Hotze, a man who has compared gays to “termites” eating away the foundation of American moral fabric and who is known to pull out a sword at events and encourage his followers to pierce their enemies using the word of God.
Mitchell recently appeared on a podcast hosted by Tony Perkins, the head of the openly anti-LGBTQ group the Family Research Council. Perkins called Mitchell’s abortion strategy “brilliant.”
Mitchell pushed back against tying his views to those of his clients.
“Everyone deserves representation. White-shoe law firms represent murderers, al-QaIda terrorists and child molesters like Jeffrey Epstein,” Mitchell said. “Of course, none of those law firms would represent Dr. Hotze, and they would ostracize any lawyer who does. But I don’t enforce a political correctness test for the clients that I represent.”