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Clarence Thomas Wants to End Marriage Equality. He Has Two Different Strategies to Do It.
Mother JonesWhen the Supreme Court overturned the constitutional right to abortion last month, Justice Clarence Thomas made clear that he wasn’t planning to stop there. In a concurring opinion, Thomas called on the high court to revoke the rights to marriage equality, intimate sexual relationships, and contraception, as well. The landmark rulings establishing these rights, Thomas wrote, are “demonstrably erroneous.”
Thomas’ argument, which none of his colleagues joined, set off alarm bells among legal scholars and advocates for LGBTQ and reproductive rights. But then—in a separate opinion three days later that received far less attention—he laid out an alternate route to gut same-sex marriage and other personal freedoms: allowing government officials to simply refuse to recognize Americans’ constitutional rights if they claim those rights conflict with their own religious values.
As the court has moved swiftly to enact its conservative agenda on everything from abortion to religion to guns to climate change, Thomas’ own reputation has shifted with it. Once considered the court’s outlier, he is now viewed as its right-wing trailblazer. Now firmly in the majority, he’s turning his arch-conservative worldview into the nation’s reality. If there’s anything this past term has taught us, it’s to take seriously the possibility that Thomas and his conservative colleagues will not hesitate to make radical changes to American life.
Thomas has laid out two paths to achieve his social agenda. One, as the public quickly took note of, is to boldly overturn the cases that recognized the constitutional right to same-sex marriage and struck down bans on sodomy and contraception. This would allow state legislatures to prohibit these things outright. Thomas’ other strategy is more subtle, but it, too, would erode some of the rights we take for granted today, particularly marriage equality. Importantly, Thomas is not making an either/or proposition here; it’s clear that he wants to pursue both paths.
On June 27, the court’s conservative 6-3 majority ruled in favor of a public school football coach who had been fired for leading prayers at the 50-yard-line—one of multiple religion cases this term in which the conservatives whittled away at the separation of church and state. In this case, Kennedy v. Bremerton School District, the court privileged the coach’s free exercise and free speech rights under the First Amendment over the Establishment Clause’s protection against the government favoring or instituting a religion. Thomas joined this ruling and, in a concurring opinion, called for the court to expand religious free exercise rights for public employees.
“The Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public,” Thomas wrote.
Thomas’ argument, which none of his colleagues joined, set off alarm bells among legal scholars and advocates for LGBTQ and reproductive rights. But then—in a separate opinion three days later that received far less attention—he laid out an alternate route to gut same-sex marriage and other personal freedoms: allowing government officials to simply refuse to recognize Americans’ constitutional rights if they claim those rights conflict with their own religious values.
As the court has moved swiftly to enact its conservative agenda on everything from abortion to religion to guns to climate change, Thomas’ own reputation has shifted with it. Once considered the court’s outlier, he is now viewed as its right-wing trailblazer. Now firmly in the majority, he’s turning his arch-conservative worldview into the nation’s reality. If there’s anything this past term has taught us, it’s to take seriously the possibility that Thomas and his conservative colleagues will not hesitate to make radical changes to American life.
Thomas has laid out two paths to achieve his social agenda. One, as the public quickly took note of, is to boldly overturn the cases that recognized the constitutional right to same-sex marriage and struck down bans on sodomy and contraception. This would allow state legislatures to prohibit these things outright. Thomas’ other strategy is more subtle, but it, too, would erode some of the rights we take for granted today, particularly marriage equality. Importantly, Thomas is not making an either/or proposition here; it’s clear that he wants to pursue both paths.
On June 27, the court’s conservative 6-3 majority ruled in favor of a public school football coach who had been fired for leading prayers at the 50-yard-line—one of multiple religion cases this term in which the conservatives whittled away at the separation of church and state. In this case, Kennedy v. Bremerton School District, the court privileged the coach’s free exercise and free speech rights under the First Amendment over the Establishment Clause’s protection against the government favoring or instituting a religion. Thomas joined this ruling and, in a concurring opinion, called for the court to expand religious free exercise rights for public employees.
“The Court refrains from deciding whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public,” Thomas wrote.
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