Should We Relax on Gay Rights? 'Yes—and No'

Ruth Marcus warns why we shouldn't dismiss Thomas' seemingly outlier push on nixing other precedents
By Jenn Gidman,  Newser Staff
Posted Jun 27, 2022 3:04 PM CDT
Should We Relax on Gay Rights? 'Yes—and No'
Supreme Court Justice Clarence Thomas speaks Sept. 16, 2021, at the University of Notre Dame, near South Bend, Ind.   (Robert Franklin/South Bend Tribune via AP, File)

(Newser) – Attached to the Supreme Court's majority opinion in overturning Roe v. Wade on Friday was a solo concurring opinion by Justice Clarence Thomas that suggested he'd like to also reconsider cases involving contraception, same-sex marriage, and other private sexual conduct. The pundit consensus has since deemed the chances of the majority of the high court ruling against birth control and gay rights as pretty low, but in her latest op-ed for the Washington Post, Ruth Marcus puts out a red flag over dismissing that possibility. The rights protected in those other mentioned cases are said to fall—just as abortion was, until last week—under a privacy umbrella within the "substantive due process" protections of the 14th Amendment. Marcus concedes that no other justice joined Thomas in taking aim at those other cases, so she poses the question on everyone's mind: "Should everyone calm down?"

Her answer: "Yes—and no." She notes it's true that contraception and same-sex marriage just doesn't touch the same nerve as abortion does. But she also points out the majority opinion highlighted that, when the 14th Amendment was ratified in 1868, there was no right to abortion recognized—and the same applies to those other cases, meaning the rights they protect could also be threatened in the future. "Thomas may be alone now, but who knows who will be willing to join him down the road?" Marcus writes, noting that what "starts as an extreme, outlier view can migrate into the conservative mainstream." "When you pull on a thread, an entire garment can unravel," she adds. "Thomas would like to see that happen, and he is tugging, hard, at the fabric of constitutional law. Who knows what will be left when he is done." Read her piece in its entirety here. (Read more Clarence Thomas stories.)

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