Supreme Court Justice Thomas says gay rights rulings can be tossed

Associate Justice Clarence Thomas poses during a group photo of Justices at the Supreme Court on April 23, 2021 in Washington.

Erin Scheff | pool | Reuters

Supreme Court Justice Clarence Thomas said on Friday that landmark High Court rulings that established gay rights and contraceptive rights must now be reconsidered as the federal right to abortion has been revoked.

Thomas wrote that those decisions were “apparently wrong decisions.”

The cases he referred to are the decision of Griswold v. Connecticut, 1965 in which the Supreme Court held that married couples have the right to obtain contraception; Lawrence v. Texas, which established the right to engage in private sexual acts in 2003; and the 2015 ruling in Obergefels v. Hodges, which held that same-sex marriage is a right.

Thomas’s recommendation to reconsider that all three decisions does not have the force of legal precedent, nor does it compel his colleagues to take the action he suggested in the Supreme Court.

But it is an implied invitation to Conservative lawmakers in individual states to pass legislation that may veer away from previous Supreme Court rulings, with the direction of potentially reversing those decisions of that court.

That’s the approach conservative lawmakers took in many states, where for years they passed restrictive abortion laws in the hope that a challenge to them would reach the Supreme Court and result in overturning federal abortion rights.

That’s what happened on Friday when the Supreme Court upheld the Mississippi abortion law, Roe v. Wade imposed more strict restrictions on the process than allowed in his 1973 decision, completely overturning Roe. Another case of the 1990s also overturned, which clarified that abortion is a constitutional right.

Thomas agreed that he wrote siding with other Conservative justices in voting to overturn Roe, citing the justification for overturning that decision as he called for a reconsideration of other earlier cases related to abortion.

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“The Court explains well why, under our actual due process examples, the alleged right to abortion is not a form of ‘freedom’ protected by the Due Process Clause,” they wrote.

That clause guarantees that no state “shall deprive any person of life, liberty or property without due process of law.”

Thomas argued that the right to abortion under that clause was “neither ‘deeply rooted in the history and tradition of this nation’ nor ‘in the concept of ordered liberty’. ,

Thomas noted that the three cases that must now be reconsidered by the court in Friday’s decision to overturn Roe are “not at issue”.

But, he wrote, they are all based on the interpretation of the due process clause.

In particular, he said, they are based on the idea of ​​”substantial due process”, which in an earlier case he called “an oxymoron” that ‘reduction'[s] any grounds in the Constitution.’ ,

Thomas said the idea that the constitutional clause which guarantees only “procedure” for deprivation of life, liberty or property to a person cannot be used “to define the essence of those rights”. .

While Thomas said he agreed that nothing Friday in the ruling relating to Roe “should be deemed to cast doubt on the instances that are not related to abortion …, Lawrence, and Obergefels.”

“Since any actual due process decision is ‘obviously wrong’ … we have a duty to
‘Correct the error’ established in those instances,” Thomas said.


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