Thomas Calls For SCOTUS To ‘Reconsider’ Rights To Same-Sex Marriage, Contraception

Justice Clarence Thomas. TPM Illustration/Getty Image

Much of the 213-page decision overturning abortion rights is concerned with what the justices are really saying. 

The conservative majority, through Justice Samuel Alito, promises that this decision poses no risk to other constitutional rights related to bodily autonomy and private relationships. Justice Brett Kavanaugh echoes that vow again in his concurring opinion.

The dissenting liberal justices call nonsense, saying that following the majority’s reasoning to its logical conclusion — that rights are only validated by their explicit presence in the Constitution and historical grounding — means that of course same-sex marriage and contraception are under threat. 

Justice Clarence Thomas bothers with none of that. He says outright that the Court should revisit other landmark decisions — naming the cases that protect the right to a same-sex marriage, to conduct private sex acts and to access contraception. 

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he writes.

He omits Loving v. Virginia, the case protecting interracial marriage, which is often listed in the same breath with the other three. 

“Substantive due process conflicts with that textual command and has harmed our country in many ways,” he writes. “Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”

It’s a hallmark entry in the “saying the quiet part out loud” category. 

The dissenting liberal justices take note. 

“The first problem with the majority’s account comes from Justice Thomas’ concurrence—which makes clear he is not with the program,” they write, after pillorying the majority’s insistence that this decision won’t threaten other, related constitutional rights. 

“So at least one Justice is planning to use the ticket of today’s decision again and again and again,” they add.  

Dear Reader,

When we asked recently what makes TPM different from other outlets, readers cited factors like honesty, curiosity, transparency, and our vibrant community. They also pointed to our ability to report on important stories and trends long before they are picked up by mainstream outlets; our ability to contextualize information within the arc of history; and our focus on the real-world consequences of the news.

Our unique approach to reporting and presenting the news, however, wouldn’t be possible without our readers’ support. That’s not just marketing speak, it’s true: our work would literally not be possible without readers deciding to become members. Not only does member support account for more than 80% of TPM’s revenue, our members have helped us build an engaged and informed community. Many of our best stories were born from reader tips and valuable member feedback.

We do what other news outlets can’t or won’t do because our members’ support gives us real independence.

If you enjoy reading TPM and value what we do, become a member today.

Latest News
Comments
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Investigations Desk:
Reporters:
Newswriters:
Director of Audience:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: