Clarence Thomas says Supreme Court should ‘reconsider’ legalising same-sex marriage and contraception in wake of Roe decision

Justice Clarence Thomas, in his opinion concurring with the overturning of Roe v Wade and effectively ending constitutional protections for abortion in the US, called on his colleagues in the US Supreme Court to overturn the rulings that currently protect the right to contraception, same-sex relationships, and same-sex marriage.

On Friday, in his concurrent opinion to Dobbs v. Jackson Women’s Health Organization, Thomas emphasized that SCOTUS 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,” wrote Thomas.

The cases mentioned include Griswold v. Connecticut, which ruled that states had no right to ban contraception, Lawrence v. Texas, which ruled on same-sex sex, and Obergefell v. Hodges, which ruled that same-sex couples could legally marry.

In response to Thomas’ opinion, Justice Breyer, Justice Sotomayor, and Justice Kagan pushed back on his suggestion in their emphatic dissent. The Justices argued that all three cases mentioned by Thomas “are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. “

“The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does ‘cast[s] doubt on precedents that do not concern abortion’... But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history’: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty”, they write.

“The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives].’ So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other. “

Many had speculated that the overturning of Roe would open up the door for the Supreme Court to review these landmark cases. Jim Obergefell, whose Ohio lawsuit was the case that led to SCOTUS legalizing same-sex marriage, told The Independent earlier this month that he was “terrified and people should be terrified.”

“This is a signal to people who are opposed to marriage equality, who are opposed to LGBT+ equality, who are opposed to progress, giving them actual words that they can use in a lawsuit to challenge something. And it’s a signal to judges in state and federal courts that if cases come before you using this argument, the Supreme Court might be on your side,” he said.

Obergefell issued another statement after the news broke that Roe had fallen, calling Thomas “a Supreme Court justice appointed by humans, he is not the Supreme Deity.”

The millions of loving couples who have the right to marriage equality to form their own families do not need Clarence Thomas imposing his individual twisted morality upon them. If you want to see an error in judgment, Clarence Thomas, look in the mirror,” he said.

In a statement to The Independent in the aftermath of Thomas’ remarks, Amit Paley the CEO and Executive Director of The Trevor Project, the world’s largest suicide prevention and mental health organization for LGBTQ youth, he said: “Overturning Roe v. Wade will allow states to further restrict and regulate essential health care and reduce access to the already limited number of LGBTQ-competent providers in many parts of the country, posing a threat to the health and safety of young LGBTQ people. In undermining decades of jurisprudence on the constitutional right to privacy, this decision could also jeopardize the rights afforded to LGBTQ people in the landmark Obergefell and Lawrence decisions — to love who you love and be who you are without fear of criminalization.”

“The Trevor Project will not stop fighting to establish true, lived equality for LGBTQ people, and our counselors are here 24/7 to support all young LGBTQ people across the country who may be feeling a wide range of emotions — including fear, stress, and anxiety — in response to this decision,” he added.