In his concurrence in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas suggested that it was high time the court consider whether the Fourteenth Amendment’s language about liberty should really apply to all of these scandalous concepts it’s been applied to.
Thomas highlighted access to contraception, consensual sex, and same-sex marriage as areas where the court might have overstepped by asserting the government could not strip those things away without due process. In each of those cases, the court held that some part of the Fourteenth Amendment guaranteed equal protection or required due process to remove.
Interestingly, Thomas left one notable case out: Loving v. Virginia, which in 1967 held that interracial marriage was protected under the Fourteenth Amendment. The later Obergefell v. Hodges would apply exactly the same logic to same-sex marriage that Loving applied to interracial marriage.
It’s easy enough to say that the reason Thomas left out Loving is because Thomas is a black man and his wife, noted anti-government activist Ginni Thomas, is a white woman. To call for overturning the precedent that allowed his own marriage seems not so great.
But it also comes to mind the adage of the Leopards Eating People’s Faces Party. It is very likely that, in Justice Thomas’ view, Loving v. Virginia was rightly decided, because racial equality is Correct – and, in the same view, Obergefell was wrongly decided, because equality based on sexual orientation is Not Correct. Perhaps Thomas would not personally object to gay marriage, but he does not think the Constitution requires it in the same way it requires interracial marriage (Thomas dissented in the original Obergefell decision and later said requiring people to enforce a constitutional right could violate their religious rights).
Yet those same advocates who believed that striking down Roe wouldn’t lead to striking down access to contraception under Griswold have now seen Thomas lay bear the roadmap to exactly that. In what world does Thomas not think striking down Obergefell would lead to the elimination of Loving?
