Charlottesville
June 25, 2022
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 argued that using the due process clause to uphold these rights is a “legal fiction” that’s “particularly dangerous,” and believes the court should issue a ruling saying the court cannot grant civil rights using that legal argument. In their dissent, liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor cast doubt on Alito’s assurance that the ruling only applies to abortion, writing “it is impossible to understand” how the “opinion today does not threaten … any number of other constitutional rights.”
Crucial Quote
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” Thomas wrote in his concurrence. “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
Dissenter’s Reponse
“We cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” the liberal justices wrote in their dissent, adding that even if “the majority is sincere in saying, for whatever reason, that it will go so far and no further … the future significance of today’s opinion will be decided in the future.”
Imagine the fear that my daughter lives under. She now knows that at least one Justice thinks there is no Constitutional right for her marriage. Imagine this issue playing out where some states allow same-sex marriages while others do not. That will mean that in our UNITED States, there are some states where she will not be welcome.
I get it — the Constitution is a special document. But we have crossed a threshold where our country will very likely never be able to agree to amend it. We all know Jefferson and others thought the Constitution would be updated and modified frequently.
The same sex issue will be different than the abortion issue where women will now cross state lines to get abortions. It will put up “you are not welcome” signs in many red states. And worse, can you envision couples being imprisoned for violating Lawrence v Texas?
Perhaps Thomas is an outlier. But he’s certainly put out a welcome sign to bring forth cases that challenge those rulings.