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That Loving Feeling

Breaking Down the Clarence Thomas Threat to Same Sex Marriage, Sodomy, & the Rest of It


With Roe gone, many are asking what's next? It's open season on environmental regulation and civil rights, and in large part this is because the Federalist Society, the right-wing libertarian legal group funded by Chevron, the Koch brothers, the Richard Mellon Scaife family foundation, the Mercer family, and - wait for it - Google - has spent the last 40 years packing the courts.

Cultivating bright young students like Amy Coney Barrett, the Federalist Society, founded in 1982, built a farm team. A staggering number of these promising students (and some that weren't so promising) have become judges. Take, for example, the aforementioned Barrett. A few others whose names might be familiar: Neil Gorsuch, Clarence Thomas, Samuel Alito, John Roberts, Brett Kavanaugh. Other Federalist Society recruits are in Congress, like Ted Cruz and Josh Hawley.

Federalist Society doctrine now dominates the court. Appellate court attorney Sarah Hofstadter breaks down the law of the land, post-Federalist Society, in the decision to overturn Roe v. Wade, explaining why, no, Justice Thomas' marriage isn't on the block, legally speaking, and while he may be a hypocrite, he's not being one on this issue. At the same time, the Roe decision is alarming for same sex marriage, contraception, and anyone in the LGBTQ community.

Upcoming cases likely to restrict the ability of government agencies, like the Environmental Protection Agency, to regulate corporations. Watch this space.

Sarah Hofstadter

After the explosive decision to overturn Roe v. Wade, Supreme Court Justice Clarence Thomas has received even more outraged scrutiny than the relatively bland Justice Samuel Alito, a longtime abortion opponent who wrote the majority opinion. Alito has been criticized for relying on the views of a 17th century English judge who believed that women who were witches should be burned to death.

Thomas, some said, had the integrity to lay his intentions on the line, saying in his concurring opinion that previous decisions based on the same legal reasoning as Roe were “demonstrably erroneous.” He wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

“Substantive due process” is the term used by legal scholars to refer to the Supreme Court’s historical practice of relying on the due process clause of the Fourteenth Amendment as the basis for guaranteeing various rights that are not expressly mentioned in the Constitution. To take Thomas’ opinion in order: Griswold vs. Connecticut is a 1965 ruling in which the Supreme Court said married couples have the right to obtain contraceptives; Lawrence v. Texas in 2003 established the right to engage in private sexual acts (yes, that would include sodomy, previously banned), and the 2015 ruling in Obergefell v. Hodges, said there is a right to same-sex marriage.

The internet promptly took Thomas to task for proposing to overrule these cases while leaving out Loving v. Virginia, the landmark case establishing the right to interracial marriage – a right on which Justice Thomas himself relied when he married his wife, the hard right activist and Trump loyalist Ginni Thomas. Reproductive rights supporters say that Thomas’ own reasoning in his concurring opinion would also require the Court to overrule Loving v. Virginia.

It made a great meme, but don’t hold your breath. The majority’s rationale for overturning Roe v. Wade was that substantive due process is inadequate to support a right to abortion, because that right is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.”

Justice Thomas’s concurring opinion excoriates the very notion of substantive due process. His proposal to overrule Griswold, Lawrence, and Obergefell takes that theme one step farther, arguing that the majority’s rejection of substantive due process when it overturned Roe requires it to reexamine all the other cases in which the Court has relied that doctrine as the foundation for other constitutional rights.

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Minister of Women’s Reproductive Organs, Georganne Deen, artist

While that would include Griswold, Lawrence, and Obergefell, it wouldn’t include Loving, much as reproductive rights advocates would like to argue that it does. I hate to admit this, because I fully share people’s abhorrence for Justice Thomas’s political and jurisprudential views – not to mention the traitorous actions of his wife in supporting Trump’s attempted coup. But the Loving decision (unlike Griswold, Lawrence, and Obergefell) was not premised – at all – on the idea that substantive due process protects some rights even though the Constitution does not mention them.

Rather, it was premised on the explicit language of a different clause of the Fourteenth Amendment: the Equal Protection Clause, which forces a state to govern impartially — not to draw distinctions between individuals based solely on differences such as race that are irrelevant to a legitimate governmental objective. Loving’s holding was that “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

In addition, there is explicit, contemporaneous historical support for interpreting the Equal Protection Clause to confer a right to interracial marriage. Marriage is a contract, and the Civil Rights Act of 1866, passed under the authority given to Congress to make laws to enforce the Fourteenth Amendment, provides that “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, [and] to the full and equal benefit of all laws … as is enjoyed by white citizens.”

True, it took 100 years before the Supreme Court recognized in Loving that this language applies to interracial marriage. Nonetheless, it is clear that Loving was not a substantive due process case, but an equal protection case. Thus, the overruling of Roe has no bearing on the continued validity of Loving.

Even if the Supreme Court did overrule Loving, Justice Thomas’s marriage would almost certainly remain legal. Overturning Roe did not outlaw abortion; it just left the question up to the states. Similarly, overturning Loving would not outlaw interracial marriages; it would just allow states to do so. And it’s hard to imagine that in this day and age, any state legislature, even in the Deep South, would have the political will – nay, the political chutzpah – to reinstate a ban on interracial marriage.

As much as those of us outraged by the decision would like to needle Thomas, the better route might be to simply point out the glaring ethical lapse of a Supreme Court justice refusing to recuse himself from cases involving his wife.

Sarah Hofstadter is a retired California lawyer with decades of experience in appellate cases. She is also a veteran community activist who has escorted abortion clinic patients, fought for LGBTQ rights, and marched in countless demonstrations since her high school days.

Georganne Deen, a Texas native who has lived-in Southern California for 40 years, is an irreverent artist dedicated to the experimental narrative and an incendiary, highly nuanced documentation of human nature. Her paintings have been exhibited in museums and galleries throughout the world, including The Power Plant, Toronto; Jeffrey Deitch gallery, Los Angeles; the Aldrich Museum, Connecticut and Entwistle gallery, London.