Thomas wrote that, even though the Constitution doesn’t explicitly mention abortion rights, the Supreme Court “erroneously” decided in the 1973 Roe v. Wade decision to treat abortion as a fundamental right that should be free from government interference, something known in legal terms as “substantive due process.”
Thomas wrote, “We should reconsider all of this Court’s substantive due process precedents. We have a duty to ‘correct the error’ established in those precedents… For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [the case that granted the right to contraception] Lawrence[the case that struck down anti-sodomy laws], and Obergefell [the case that legalized marriage equality].”
In response, Obergefell made a statement, saying, “Clarence Thomas is 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.”
Now that Roe v. Wade has been overturned, 17 states have “trigger laws” that could immediately outlaw abortion. Some of those states will do that by defining life as beginning at fertilization. This re-definition is likely to impact the ability of infertile and LGBTQ people to have children via in vitro fertilization (IVF), the fertility treatment that implants eggs with sperm for implantation in a gestational parent.
IVF usually involves fertilizing multiple eggs to increase the likelihood of the treatment being successful. Once the gestational parent becomes pregnant through IVF, medical professionals discard any extra fertilized eggs.
“Without the protections of Roe v Wade, it is possible that state lawmakers may feel empowered to create barriers for people to access medical procedures like IVF – which is deeply troubling for LGBTQ+ people and anyone who needs access to IVF to expand their family,” Shelbi Day, Chief Policy Officer at the nonprofit organization Family Equality, told LGBTQ Nation.
Clela Rorex, a former Colorado county clerk considered a pioneer in the gay rights movement for being the first public official to issue a same-sex marriage license in 1975, has died. She was 78.
Rorex died Sunday of complications from recent surgery at a hospice care facility in Longmont, the Daily Camera reported.
Rorex was a newly elected Boulder County clerk when a gay couple denied a marriage license elsewhere sought her help in March 1975. She told The Associated Press in 2014 that she saw a parallel with the women’s movement and found nothing in state law preventing it.
The then-31-year-old agreed and, in the end, issued a total of six licenses to gay couples before Colorado’s attorney general at the time ordered her to stop.
State and federal law didn’t recognize gay marriage at the time. Rorex recalled that she had little public support and didn’t challenge the attorney general.
A recall effort was launched against Rorex, a single mother and University of Colorado graduate student. Suffering from chronic migraines and dealing with hate mail, she resigned halfway through her term.
Colorado legalized gay marriage in 2014 after a state court and a Denver federal court struck down a 2006 ban enacted by state voters. A 2015 U.S. Supreme Court decision recognized the fundamental right nationwide.
Jared Polis, Colorado’s first openly gay governor, paid tribute to Rorex upon learning of her passing.
“Her certification of same-sex marriages (until the Attorney General shut her down) was a pivotal moment in the long struggle for marriage equality that led to Obergefell v. Hodges in 2015, which legalized marriage equality nationally,” Polis wrote on Facebook. “So many families, including First Gentleman Marlon Reis and I, are grateful for the visionary leadership of Clela Rorex, a woman ahead of her time.”
Glenda Russell, a retired writer and LGTBQ community historian, told the Camera that Rorex faced significant backlash after issuing the first license.
“Nationally at the time, most people didn’t take it too seriously because they didn’t worry about it happening again, but in Boulder, the reaction was forceful and mean spirited. She got hit with all the homophobia and heterosexism that the LGBTQ community was facing,” Russell said.
In later years, Rorex advocated for gay and lesbian rights, speaking in schools and expressing exasperation with the slow pace of change.
According to Out Boulder County, an LGTBQ advocacy organization, Rorex was born in Denver on July 23, 1943. She earned a Bachelor of Arts degree at the University of Colorado before running for county clerk and recorder. After resigning as clerk in 1977 she obtained post-graduate degrees and served a legal administrator for the Native American Rights Fund.
A celebration of life was planned for July 23, Out Boulder County said.
The county courthouse in Boulder where she issued the licenses has been added to the National Register of Historic Places.
Members of the Cape Fear Proud Boys staged a demonstration outside a local library in Wilmington, N.C., on Tuesday where a Pride-themed storytime event was being held. The 15 masked men wearing the violent far-right group’s trademark black and yellow shirts were allowed into the library during the event by New Hanover County Sheriff’s Office deputies.
“I certainly felt like I was in danger when they entered the building,” Emily Jones, a parent who attended the event with her 17-month-old daughter, told Wilmington’s Star News Online.
According to a statement from the sheriff’s office, a deputy positioned himself between the demonstrators and the private room where four parents and six children under the age of seven had gathered for the event.
“The supervisor instructed the demonstrators that they were not allowed to enter the room,” the statement said. “At no time did Sheriff Deputies witness nor did any library staff report any of the demonstrators causing a disturbance within the library or try to enter the private room that was holding the reading. After the reading, all the participants left the library with no incident.”
New Hanover County’s chief diversity and equity officer Linda Thompson claims that the protesters did not enter the building until the Pride event had ended.
“Anyone from the public is permitted inside the building as long as they are not actively protesting or disturbing other patrons, based on the library’s code of conduct,” she said.
But witnesses dispute this account of the event. Several of the parents who attended have taken to Facebook, describing taunts and threats from demonstrators as deputies stood by. The deputies were overly friendly with the masked vigilantes, witnesses say, going so far as to fist bump the hate group members.
Jones reports seeing protesters in plain clothes holding signs that read “LGBT is grooming our kids” and “the library is responsible for child abuse” when she arrived. Once the Proud Boys members were allowed into the library, they reportedly stationed themselves outside the locked room where the event was taking place and shouted “Bring out the drag queens! Bring out the drag queens!”
“They yelled at me, they yelled at my kids. They told my kids they were going to hell,” another parent who wished to remain anonymous told Wilmington’s WWAY 3. “They told me I was a child abuser, they quoted scripture. We were escorted inside by a library employee”
In a Facebook post, Angie Smith Kahney writes that she saw officers “escort the Proud Boys and their klan into the building straight to the room where children as young as 1 were with their parents, while they shouted obscenities and threats.”
Another witness, Sandra Dawn writes that she “watched these protestors SCREAM at young children and their families as they exited the building. The sheriffs allowed these people to stand within feet of young children and SCREAM at them.”
Earlier this month, the Anti-Defamation League linked the recent spate of far-right extremist groups targeting Pride events to both racist and anti-LGBTQ rhetoric that has proliferated online. The ADL Center on Extremism reported seven incidents of far-right groups targeting the LGBTQ community during the weekend of June 11–12 alone. The demonstrations and disruptions are “fueled in part by the claim that members of the LGBTQ+ community are pedophiles who are “grooming” children.”
“Some white supremacists, meanwhile, associate antisemitic and racist conspiracy theories like the Great Replacement with the LGBTQ+ community,” the report continues, “alleging that LGBTQ+ culture and pedophilia are promoted by elites to encourage lower white birthrates in order to ‘replace’ the white population with Black and Brown people.”
A Japanese court ruled on Monday that a ban on same-sex marriage was not unconstitutional, dealing a setback to LGBTQ rights activists in the only Group of Seven nation that does not allow people of the same gender to marry.
The ruling dashes activists’ hopes of raising pressure on the central government to address the issue after a court in the city of Sapporo in March 2021 decided in favor of a claim that not allowing same-sex marriage was unconstitutional.
Three same-sex couples — two male, one female — had filed the case in a district court in Osaka, only the second to be heard on the issue in Japan.
In addition to rejecting their claim that being unable to marry was unconstitutional, the court threw out their demand for 1 million yen ($7,400) in damages for each couple.
“I actually wonder if the legal system in this country is really working,” said plaintiff Machi Sakata, who married her U.S.-citizen partner in the United States. The two are expecting a baby in August.
“I think there’s the possibility this ruling may really corner us,” Sakata said.
Japan’s constitution defines marriage as being based on “the mutual consent of both sexes.” But the introduction of partnership rights for same-sex couples in Tokyo last week, along with rising support in opinion polls, had raised the hopes of activists and lawyers for the Osaka case.
The Osaka court said that marriage was defined as being only between opposite genders and not enough debate on same-sex marriage had taken place in Japanese society.
“We emphasized in this case that we wanted same-sex couples to have access to the same things as regular couples,” said lawyer Akiyoshi Miwa, adding that they would appeal.
Economic implications
Japanese law is considered relatively liberal in some areas by Asian standards, but across the continent only Taiwan has legalized same-sex marriage.
Under current rules in Japan, members of same-sex couples are not allowed to legally marry, cannot inherit each other’s assets — such as a house they may have shared — and also have no parental rights over each other’s children.
Though partnership certificates issued by some municipalities help same-sex couples rent property together and have hospital visitation rights, they do not give them the full legal rights enjoyed by heterosexual couples.
Last week, the Tokyo prefectural government passed a bill to recognize same-sex partnership agreements, meaning local governments covering more than half of Japan’s population now offer such recognition.
While Prime Minister Fumio Kishida has said the issue needs to be carefully considered, his ruling Liberal Democratic Party has disclosed no plans to review the matter or propose legislation, though some senior party members favor reform.
An upcoming case in Tokyo will keep alive public debate on the issue, particularly in the capital, where an opinion poll by the local government late last year found some 70 percent of people were in favor of same-sex marriage.
Legalizing same-sex marriage would have far-reaching implications both socially and economically, activists say, and would help attract foreign firms to the world’s third-biggest economy.
“International firms are reviewing their Asian strategy and LGBTQ inclusivity is becoming a topic,” said Masa Yanagisawa, head of prime services at Goldman Sachs and a board member of the activist group Marriage for all Japan, speaking before the verdict.
“International businesses don’t want to invest in a location that isn’t LGBTQ-friendly.”
The Texas Republican Party unveiled its official position on LGBTQ issues over the weekend, defining homosexuality as an “abnormal lifestyle choice” and also opposing “all efforts to validate transgender identity.”
Thousands of Republican activists met at the party’s biennial convention in Houston on Saturday to agree to the party’s platformon a range of issues, including the rejection of the 2020 election results and a call to repeal of the 1965 Voting Right Act, which was enacted to prevent discrimination against Black voters.
In a section titled “Homosexuality and gender issues,” the party suggested that LGBTQ people should not be legally protected from discrimination and that being gay or trans is a choice.
“Homosexuality is an abnormal lifestyle choice,” the 40-page resolution reads. “We believe there should be no granting of special legal entitlements or creation of special status for homosexual behavior, regardless of state of origin, and we oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values.”
In addition, Texas Republicans called for the ban of gender-affirming care — including the distribution of puberty blockers or hormone-suppressing therapies, and the performance of gender-affirming surgeries — for anyone under the age of 21.
The party’s new official stance on LGBTQ issues was unveiled during Pride Month, and as advocates fight against a record number of anti-LGBTQ bills introduced in states across the country this year — more than 340, according to the Human Rights Campaign, the nation’s largest LGBTQ advocacy group.
Texas lawmakers have not enacted anti-LGBTQ legislation into law this year but have pushed headline-generating anti-LGBTQ policies in other ways.
In February, Texas Gov. Greg Abbott ordered the state’s child welfare agency to investigate child abuse claims filed against parents who might be providing their trans children with gender-affirming medical care. And earlier this month, a Texas lawmaker announced that he would introduce novel legislation to ban minors from attending drag shows in the state.
Ricardo Martinez, the CEO of Equality Texas, a statewide LGBTQ advocacy group, called the platform “extreme, but not necessarily new.”
“I’m glad that they’re being really explicit in their words because these words now match their actions,” Martinez said. “This is not surprising, but it certainly is painful for LGBTQ people who live here in Texas.”
The Texas Republican Party blocked the Log Cabin Republicans, a longstanding group of gay conservatives — which also supports many of the party’s anti-LGBTQ policies — from having a booth at Saturday’s convention. The group rebuked the party’s decision to bar it from participating, calling on the state’s GOP to “expand the tent.”
“President Trump, who historically expanded the GOP’s coalition, made clear that LGBT conservatives are welcome in the America First movement and the Republican Party,” the organization said in a statement last week. “It’s shameful that the Texas GOP leadership is choosing to not follow his lead.”
The party’s new official stance on sexual orientation and gender identity also coincides with a recent nationwide surge in charged rhetoric from media pundits and politicians about LGBTQ issues.
In recent months, conservative lawmakers, television pundits and other public figures have accused opponents of a newly enacted Florida education legislation — which critics have dubbed the “Don’t Say Gay” law — of trying to “groom” or “indoctrinate” children. The word “grooming” has long been associated with mischaracterizing LGBTQ people, particularly gay men and transgender women, as child sex abusers.
Advocates have been urging public officials against using the charged rhetoric, warning that it could cause violence directed at LGBTQ Americans.
At least three LGBTQ events were targeted by white nationalist groups this month, with police arresting 31 people at an annual Pride in the Park event in Coeur d’Alene, Idaho, on charges of suspicion of conspiracy to riot. Those arrested came to the event with gas masks and shields.
The Texas Republican Party’s new platform also counters President Joe Biden’s recent efforts to expand LGBTQ rights through the executive branch.
Last week, the president signed an executive order that will direct federal health and education agencies to expand access to gender-affirming care and advance LGBTQ-inclusive learning environments at American schools. It will also curb federal funding for the debunked practice of “conversion therapy,” which nearly every leading U.S. medical association has condemned, and ask the Federal Trade Commission to consider whether the practice constitutes an unfair or deceptive act.
The Texas GOP’s stance on same-sex marriage aligns with the national party. The most recent Republican National Committee platform — which was enacted in 2016 and renewed in 2020 — includes at least five references to marriage as exclusively between a man and a woman.
A Supreme Court decision allowing taxpayer dollars to help pay for tuition at schools that offer religious instruction has sparked concerns about the potential implications of the ruling on LGBTQ rights.
In a 6-3 vote, the court ruled Tuesday that Maine could not prohibit parents from using a state-funded tuition assistance program to pay for their children to attend private religious schools while permitting them to do so in private secular schools. The two schools cited in the case have a history of homophobic and transphobic policies.
The ruling in Carson v. Makin is a continuation of the conservative-majority court’s recent willingness to poke holes in the barrier between church and state. A number of LGBTQ advocacy organizations and other supporters of queer rights are sounding the alarm about what the decision signals about the court’s direction, especially when it comes to reconciling religious freedom with safeguarding lesbian, gay, bisexual, transgender and queer people from discrimination.
Following the high court’s decision, Maine Attorney General Aaron Frey said in a statement that he is “terribly disappointed and disheartened” by the ruling, which specifically affects about 5,000 Maine children and their families who live in rural school districts that do not have a public school, and therefore must rely on the tuition program to attend private school.
He said the schools named in the suit “promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.” He also vowed to work with Maine’s governor, Janet Mills, to “ensure that public money is not used to promote discrimination, intolerance, and bigotry.”
“While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear,” Frey said in the statement.
The two private Christian schools involved in the case — Temple Academy and Bangor Christian Schools — “candidly admit” that they discriminate against LGBTQ people, state officials wrote in a May 2021 court filing.
Bangor Christian’s 2021 handbook, for example, says the only “legitimate meaning” of marriage is one that “joins one man and one woman” and states that “any other type of sexual activity, identity or expression that lies outside of this definition of marriage” are “sinful perversions of and contradictory to God’s natural design.”
“Any deviation from the sexual identity that God created will not be accepted,” the handbook states.
Temple Academy requires students and parents to sign a form acknowledging that the school adheres to a conservative evangelical ideology that includes views on marriage and homosexuality that are “often at odds” with the “humanistic views currently prevailing in our society.”
Plaintiffs David and Amy Carson, one of the two sets of parents who sued Maine over its tuition assistance program, told NBC News on Tuesday that they wanted to send their daughter to Bangor Christian because, as Amy Carson put it, the school’s beliefs “are aligned with what we have at the home.”
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Martha Boone, principal of Bangor Christian, declined Wednesday to comment to NBC News. Temple Academy did not respond to a request for comment.
Katherine Franke, a law professor at Columbia University, said Tuesday’s ruling is a “huge loss” for LGBTQ equality, adding that the decision will allow public funds to flow to private schools that have policies that seem to conflict with public values.
“That certainly impacts LGBT students most directly, because these schools are well known in Maine for being quite homophobic,” Franke said. “What we’re seeing, I think, in this decision, is this new court bringing together several strands of its religious liberty jurisprudence, or doctrine, in a way that clearly elevates religious liberty rights over all other rights,” she said.
Equality Maine, a statewide LGBTQ rights organization based in Portland, wrote in a tweet that it is “disappointed but not surprised” by the ruling, because many religious schools “openly discriminate against LGBTQ+ people, promote only their beliefs, and are closed to divergent point of views.”
“Because of the Supreme Court ruling, we believe Maine has an obligation to examine their policies and procedures, and change them, to avoid public money to flow to religious institutions that we know discriminate against LGBTQ+ people,” the group wrote in a separate tweet.
The implications of Tuesday’s decision remind Jenny Pizer, acting chief legal officer for LGBTQ civil rights group Lambda Legal, of the late ‘90s, when Congress passed a series of laws that came to be known as “Charitable Choice.” According to White House archives, the laws were intended to clarify the rights and the responsibilities of faith-based organizations receiving federal money.
Pizer said the laws were part of a push to expand partnerships and collaboration between government and religious agencies that left some worried about what she called “a dangerous path of entangling government and taxpayer money with religion.” She said she believes Tuesday’s decision is evidence of those fears coming to bear.
“As members of a community that has been subjected to generations of abuse based on religious condemnation of who we are, this is a very alarming time,” she said. “This decision is the continuation of a trend. It’s not the beginning. It’s not the end. It’s one point on a dangerous road.”
The first National Park Service visitor center focused on teaching LGBTQ history will open right next door to New York City’s historic Stonewall Inn.
Pride Live, the LGBTQ advocacy group spearheading the project, announced Tuesday that the Stonewall Inn — the site of a June 1969 uprising that’s widely considered a major milestone in the modern gay rights movement — will be reunited with its neighboring building in Manhattan’s Greenwich Village neighborhood to “commemorate the events of the Stonewall Rebellion in their authentic locations,” according to a news release.
The Stonewall National Monument Visitor Center will provide an “immersive experience” to visitors with tours, exhibits, lectures and visual displays centered around LGBTQ culture and history. Park rangers for the Stonewall Inn, which was designated as a national monument by President Barack Obama in 2016, will also work out of the center.
Ann Marie Gothard, a member of Pride Live’s board of directors, told NBC News the visitor center came out of a desire to both “capture the essence” of the era when the uprising took place and connect young people with the legacy of Stonewall. She said part of the purpose of the center will be to include and “motivate the next generation of leaders.”
“If you’ve ever gone down and kind of just observed tourists visiting Stonewall Inn, you’ll see that individuals of a certain age, because it’s a bar, are not allowed to go in,” she said. “So we really want to create a space that’s welcoming for all, whether you represent the gay community or you’re an ally.”
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The original Stonewall Inn consisted of what is now two separate buildings: 53 Christopher St., where the current bar is located, and 51 Christopher St., where the visitor center will be. Gothard said Pride Live is convening a group of experts and historians to look into how the two buildings were separated.
The announcement comes during Pride Month, which is celebrated every year in June by LGBTQ people around the world in part to commemorate the 1969 Stonewall uprising. On June 28, 1969, when police attempted to raid the establishment — a common occurrence at that time, when it was illegal to serve alcohol to “homosexuals” — they were met with fierce resistance, sparking a dayslong rebellion and what many consider to be a watershed moment in the history of queer liberation.
The next year, 1970, saw the first annual Pride march in New York City, what was then called the Christopher Street Liberation Day march. In the decades since, many have come to acknowledge Stonewall as hallowed ground and a symbol in the fight for LGBTQ rights.
In a statement Tuesday, Sen. Chuck Schumer, D-N.Y., called the visitor center an important memorial to commemorate “an iconic and pivotal moment” in U.S. history. He said he was proud the first center of its kind will open up in New York.
The nearly 3,700-square-foot building is set to open in summer 2024.
But no other state has created such a comprehensive strategy — a legislative bill package with more than a dozen proposals, new funding to expand abortion access and a proposed November ballot measure that would enshrine the right to abortion in the state Constitution.
The Supreme Court decision, on a 5-4 vote, clears the way for more than half the states in the country to swiftly ban the procedure, a move that puts great pressure on states where abortion will still be legal. California wants to be an abortion haven for pregnant people living under new laws hostile to abortion.
A restrictive Texas abortion law prompted Newsom last fall to establish a council on the future of abortion. The group drafted a list of recommendations that turned into the long list of abortion-related bills introduced in the California Legislature this year. But it was only until after POLITICO’s reporting of an early majority draft opinion that lawmakers proposed amending the state constitution to explicitly protect the right to abortion, as well as contraception.
Senate Constitutional Amendment 10, which is on track to be placed on the November ballot in the coming days, would ask voters to change the California Constitution to declare that “the state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”
Newsom on Friday afternoon signed into law a bill to shield abortion clinicians and out-of-state patients from abortion laws that threaten to impose criminal penalties. It took effect immediately. Other proposals moving through the Legislature would offer financial help to people coming from other states for abortion-related services.
The Supreme Court’s decision to overturn nearly 50 years of legal precedent upholding a right to end a pregnancy won the support of five of the court’s six conservative justices. Chief Justice John Roberts and the court’s three liberal justices opposed overruling Roe.
“We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote in the majority opinion, referring to Planned Parenthood v. Casey, the case that barred states from banning abortion before the point of fetal viability. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”
The Biden administration proposed a dramatic overhaul of campus sexual assault rules on Thursday, acting to expand protections for LGBTQ students, bolster the rights of victims and widen colleges’ responsibilities in addressing sexual misconduct.
The proposal, announced on the 50th anniversary of the Title IX women’s rights law, is intended to replace a set of controversial rules issued during the Trump administration by Education Secretary Betsy DeVos.
The proposal is almost certain to be challenged by conservatives, and it is expected to lead to new legal battles over the rights of transgender students in schools, especially in sports.
The Supreme Court must revisit and overrule past landmark decisions that legalized the right to obtain contraception, the right to same-sex intimacy and the right to same-sex marriage, conservative Justice Clarence Thomas wrote Friday.
Thomas, in a concurring opinion to the court’s precedent-breaking decision overturning Roe v. Wade and wiping out constitutional protections for abortion rights, said that he would do away with the doctrine of “substantive due process” and explicitly called on the court to overrule the watershed civil rights rulings in Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges.
Griswold was a 1965 Supreme Court decision that established the right for married couples to buy and use contraceptives. It became the basis for the right to contraception for all couples a few years later. Lawrence was a 2003 Supreme Court decision that established the right for consenting adults to engage in same-sex intimacy. Obergefell was a 2015 Supreme Court decision to establish the right for same-sex couples to be married.
The legal reasoning in all three monumental decisions — as well in the two decisions, Roe v. Wade and Planned Parenthood v. Casey, that had prior to Friday established a legal right to abortion care — relied heavily on the doctrine of substantive due process.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote. He later called it a “legal fiction” that is “particularly dangerous.”
Substantive due process is a term in constitutional law that essentially allows courts to protect certain rights, even if those rights are not explicitly enumerated in the Constitution. It has been interpreted in many cases to apply to matters relating to the right to privacy — including over matters like love, intimacy and sex — which is not explicitly mentioned in the Constitution.
Conservative jurists have long dismissed the legal reasoning that supported that interpretation of substantive due process. And Thomas, a member of the bench’s conservative wing, made that clear in his writings in Friday’s decision.
“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,” Thomas wrote.
And because the court, in its ruling Friday, drew heavily on that very idea — that substantive due process is not in the Constitution — Thomas concluded that almost all other precedents that relied on the doctrine should also be overturned.
“I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall ‘deprive any person of life, liberty, or property without due process of law.’ The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause. Such a right is neither ‘deeply rooted in this Nation’s history and tradition’ nor ‘implicit in the concept of ordered liberty,’” he wrote.
Thomas then went even further, writing that the court, after overruling those particular decisions, should eliminate “substantive due process” altogether.
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“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” he wrote. “Substantive due process conflicts with that textual command and has harmed our country in many ways.”
“Accordingly,” he added, “we should eliminate it from our jurisprudence at the earliest opportunity.”
Thomas, who joined the court in 1991 as only the second Black justice in Supreme Court history, dissented in both the Lawrence and Obergefell decisions.
In Friday’s opinion, Thomas made no mention of Loving v. Virginia, the landmark 1967 ruling by the Supreme Court that struck down laws prohibiting interracial marriage. That decision relied in part on the substantive due process doctrine — and was cited in several subsequent decisions that did as well, including Obergefell in 2015.
But Thomas, whose wife is white — meaning their interracial marriage could have been deemed in illegal in certain states had the court not ruled the way it did in Loving — did not mention the 1967 decision as one that should be revisited.In their own opinions, Justices Samuel Alito and Brett Kavanaugh both referred to Loving, writing that it should not be revisited despite its reliance on substantive due process.
President Joe Biden, speaking to the nation following the ruling Friday afternoon, specifically addressed Thomas’ analysis, saying it paves an “extreme and dangerous path” that the “court is now taking us on.”
“I’ve warned about how this decision risks a broader right to privacy for everyone,” Biden said. “That’s because Roe recognized the fundamental right to privacy and has served as a basis for so many more rights that… we’ve come to take for granted, that are ingrained in the fabric of this country: the right to make the best decisions for your health, the right to use birth control, a married couple in the privacy of their bedroom for God’s sake, the right to marry the person you love.”
“Justice Thomas said as much today. He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception,” Biden added.
Thomas’ opinion also attracted the ire of prominent civil rights groups, as well as Jim Obergefell, the plaintiff in the 2015 decision that Thomas wants the court to overturn.
“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,” Obergefell told NBC News in a statement. “If you want to see an error in judgment, Clarence Thomas, look in the mirror.”
Sarah Kate Ellis, head of the LGBTQ advocacy group GLAAD, called Thomas’ opinion “a blaring red alert for the LGBTQ community and for all Americans.”
“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,” Ellis said in a statement. “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,” Ellis added.