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Supreme Court Justice Clarence Thomas wants the court to revisit and overrule decisions that struck down state restrictions on contraception, private consensual sex, and same-sex marriage, saying they are “demonstrably erroneous.”
The ultraconservative justice says so in his concurring opinion in Dobbs v. Jackson’s Women’s Health Organization, the ruling that came out today and struck down Roe v. Wade, the 1973 decision that established abortion as a constitutional right and meant states could not ban it and could regulate it only in a limited fashion. The Dobbs ruling means any state can ban the procedure or restrict it severely.
To reverse those decisions on contraception, sex, and marriage equality, a case would have to come before the Supreme Court, but Thomas clearly would welcome such a case.
His rationale: The Due Process Clause of the 14th Amendment to the U.S. Constitution “does not secure any substantive rights.” The court today, in the majority opinion written by Justice Samuel Alito, declined to disturb other rulings relying on the substantive due process doctrine, but it should do so in the future, he wrote, referring to Griswold v. Connecticut (contraception), Lawrence v. Texas (private consensual sex), and Obergefell v. Hodges (marriage equality).
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“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” (Thomas’s parenthetical citations of court decisions have been omitted from the quoted material.)
“Substantive due process … has harmed our country in many ways,” he concluded. “Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
Thomas has previously made clear that he would like to see Obergefell overturned, and Alito has said so as well. In his dissent from the Obergefell ruling, he wrote, “Had the majority allowed the definition of marriage to be left to the political process — as the Constitution requires — the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
He also joined Alito in a statement issued at the start of the court’s 2020 term. “In Obergefell v. Hodges … the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text,” Alito wrote. “Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs. … The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often ‘decent and honorable,’ … the Court went on to suggest that those beliefs espoused a bigoted worldview.”
Leaving the question of marriage equality and regulations on other forms of private behavior to the states would, of course, result in a patchwork of laws, in which a couple could be married in one state and find their marriage invalidated if they move to another. There will now be a patchwork of laws on abortion, with the procedure totally legal in some states, heavily restricted in others, and outright banned in some.
“Thomas’ [concurring opinion] is a blaring red alert for the LGBTQ community and for all Americans,” GLAAD president Sarah Kate Ellis said in a statement. “We will never go back to the dark days of being shut out of hospital rooms, left off of death certificates, refused spousal benefits, or any of the other humiliations that took place in the years before Obergefell. And we definitely will not go back to the pre-Lawrence days of being criminalized just because we are LGBTQ. But that’s exactly what Thomas is threatening to do to the country, even as support for marriage equality is at an all-time high of 71 percent and more Americans are coming out as LGBTQ with each generation.”
Ellis added, “Between this threat and today’s reversal of abortion rights, we can no longer trust that the Supreme Court is operating in the interests of the majority of Americans.”