Clarence Thomas: Contraception, same-sex marriage should be next

The Supreme Court “should reconsider” rulings based on the same legal reasoning as Roe v. Wade, including those protecting homosexual sex, same-sex marriages and the use of contraceptives by married people, Justice Clarence Thomas wrote in one statement published on Friday.

In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and allowed states to ban abortion, Thomas wrote that the Supreme Court has a “duty to correct the error” made in Obergefell vs. Hodges (2015) which legalized same-sex marriage, Lawrence vs. Texas (2003) which protects same-sex relationships, and Griswold vs. Connecticut (1965) which protects married couples’ access to contraception.

Although Thomas echoed the majority view, he wrote separately to urge the Supreme Court to reconsider these cases. All three rely on substantive due process, the idea that the constitution protects certain rights is not explicitly mentioned in their text. Thomas has repeatedly challenged this legal principle, calling it the “oxymoron of deficiency”.[s] every basis in the Constitution.’” And because “every substantive decision of due process is ‘provenly wrong’,” the court must review the verdicts, Thomas argued. “With these demonstrably flawed decisions overruled, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive litigation has created,” wrote Thomas, who was appointed by President George HW Bush.

The Biden administration and civil rights activists had warned that if conservative judges reversed the landmark 1973 Roe decision that established abortion rights, they could soon curb other freedoms as well. In a remark on Friday, President Biden highlighted Thomas’s consensus view, saying it signals “an extreme and dangerous path in which the court is now leading us.”

Thomas’ opinion is “one of the most regressive” in modern history, said Anthony Michael Kreis, a law professor at Georgia State University’s College of Law, in an interview. If Thomas’s “constitutional vision were ever to materialize, it would require a surveillance state incompatible with basic notions of liberty and liberty,” Kreis added.

Kreis said it was unlikely that a majority of the public would support Thomas’ preferred course of action, noting that other judges did not share Thomas’ opinion. (Judge Brett M. Kavanaugh, in his concurring opinion, wrote that “the repeal of Roe does not constitute the reversal of, and does not threaten or challenge, those precedents.”)

Kreis said his concern isn’t that Thomas might muster a majority on the Supreme Court to support his view, but that the opinion might “encourage people on the ground — in the state legislatures and elsewhere,” he said. “They might feel like they have allies they can muster against their neighbors’ basic civil rights.” Clarence Thomas: Contraception, same-sex marriage should be next

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