Supreme Court Justice Clarence Thomas said Friday that the high court should “reconsider” earlier decisions finding constitutional rights to contraception and same-sex relationships through a controversial legal theory.
Thomas ruled with the majority on Friday in Dobbs v. Jackson Women’s Health Organization, a highly-anticipated decision that overturned the 1973 decision in Roe v. Wade, which codified a right to an abortion in federal law. The same legal theory that supported a right to an abortion in Roe was also used in a handful of other cases to justify rights discovered through “substantive due process.”
Thomas wrote in a concurrence to Justice Samuel Alito’s majority opinion that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
“We have a duty to ‘correct the error’ established in those precedents,” he continued. “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.”
Thomas has been a longtime critic of “substantive due process,” a reading of the 14th Amendment that posits that the amendment’s due process clause applies to rights outside of strict legal procedures and rights not explicitly protected in the Constitution.
Thomas’ view of the 14th Amendment is that it “protects the processes by which your rights are adjudicated, not the actual rights themselves,” Jacob Meckler, a law clerk at the America First Legal Foundation, told The Daily Wire. For instance, the right to a firearm made explicit in the Second Amendment is a substantive right, whereas the Fifth Amendment right against self-incrimination is a procedural right.
In the case of Dobbs, however, the right to an abortion was read into the Constitution under the 14th Amendment while lacking an explicit basis using the due process clause. The due process clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Based on the reasoning in the Dobbs decision, the court should now revisit other cases based on the “substantive due process” theory, Thomas said. Notably, the justice wrote that the other legal rights based on the theory may still be valid, though the court must look for a different textual basis for them.
Thomas listed three such cases that he said should be reviewed. Griswold v. Connecticut, decided in 1965, enshrined a right to contraceptives. Lawrence v. Texas was decided in 2003 and read into the Constitution a right to certain private sexual conduct, namely the right to a same-sex relationship. Obergefell v. Hodges was decided less than a decade ago in 2015 and guaranteed a right for same-sex couples to marry.
Jim Obergefell, the lead plaintiff in Obergefell and a candidate for the Ohio state house, responded to Thomas’ concurrence in a statement to The Huffington Post.
“Clarence Thomas is a Supreme Court justice appointed by humans, he is not the Supreme Deity,” Obergefell said. “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.”
The majority opinion in Dobbs stresses that “this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Alito later states that the act of abortion is “fundamentally different” to other substantive due process rights “such as intimate sexual relations, contraception, and marriage.”
If the decisions in Griswold, Lawrence, and Obergefell did happen to be overturned, the issue in each would, like abortion, revert to the states for regulation. It’s doubtful that such a case challenging those precedents will make it up to the Supreme Court anytime soon, however.