Clarence Thomas: Court Should Reconsider Abolition of Traditional Marriage Next After Overturning Roe
Public Advocate president Eugene Delgaudio says "Thank you Judges and to Judge Clarence Thomas for pointing out that the Court should consider other "precedents" like the terrible decision to overturn traditional one man one woman marriage. Public Advocate has begun to conduct public surveys on social media to build support for that potential future decision to restore one man one woman marriage to America."
Supreme Court Justice Clarence Thomas suggested the court should reconsider rights like birth control and same sex marriage in future decisions, after the court overturned Roe v. Wade and the federal right to an abortion Friday, upending decades of precedent.
Justice Samuel Alito said in the court's opinion that its ruling Friday should only be applied to abortion and not other rulings the court has made based on due process rights, like Obergefell v. Hodges, which affirmed the right to same-sex marriage, and Griswold v. Connecticut, which guaranteed a constitutional right to privacy and the right for married couples to use contraceptives.
In a concurring opinion, Thomas agreed that this ruling itself does not apply to other cases, as "the court's abortion cases are unique" and justices only considered this one set of circumstances, rather than rights granted through "substantive due process" as a whole.
But Thomas said the court "should consider" these other precedents in future cases, saying that Obergefell, Griswold and Lawrence v. Texas-which affirmed the right to sexual intimacy between same-sex couples-were also "erroneous" and the court has "a duty to 'correct the error' established in those precedents."
Thomas wrote (beginning at page 118 of the 266 page opinion)
"The Court today declines to disturb substantive due process jurisprudence generally or the doctrine's application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court's abortion cases are unique, see ante, at 31-32, 66, 71-72, and no party has asked us to decide "whether our entire Fourteenth Amendment jurisprudence must be preserved or revised," McDonald, 561 U. S., at 813 (opinion of THOMAS, J.).
Thus, I agree that "[n]othing in [the Court's] opinion should be understood to cast doubt on precedents that do not concern abortion." Ante, at 66.
For that reason, 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," Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to "correct the error" established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). 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. For example, we could consider whether any of the rights announced in this Court's substantive due process cases are "privileges or immunities of citizens of the United States" protected by the Fourteenth Amendment."