Now that the Supreme Court has decided to take up the issue of whether gays have a constitituional right to marriage, most of the attention will likely focus on the key swing votes in the court – Chief Justice John Roberts and Justice Anthony Kennedy. But court-watchers should keep an eye out for a potential surprise vote: Justice Clarence Thomas. He may be inclined to join with the liberal justices on this issue.
Thomas is generally seen as a staunch conservative to the right of even Justice Antonin Scalia. He notably thinks little of the concept of stare decisis, meaning that legal precedents don’t matter much to him if he thinks they interfere with a plain reading of the Constitution’s text. Thus he has been unafraid to attack long-ingrained liberal precedents.
But Thomas’ legal thinking also has a strong libertarian bent. If he thinks the Constitution does not bar it he has been inclined to allow it. The caveat here is that his reading of the Constitution has also given states leeway in drafting laws in those cases. This can bee seen in his ruling on the last major gay rights case before the Supreme Court, 2003′s Lawrence V. Texas.
The case involved whether the state of Texas could outlaw sodomy. The court ruled 6-3 that this violated the due process clause of the Constitution. The ruling overturned anti-sodomy laws nation-wide. Then-Chief Justice Rehnquist and Thomas joined Scalia’s dissent, which argued mainly that the majority had failed to abide by stare decisis in this case.
Thomas explained his thinking in a brief concurring opinion, just two paragraphs long:
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.”Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. (Emphasis added.)
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.
Thomas is saying, in essence, that the anti-sodomy law is wrong and unfair but he still does not see how the Constitution gives the court the authority to overturn it. He believes the law is the state’s prerogative and the court should recognize that. He makes clear that if it were up to him though, the law would be repealed.
The gay marriage case before the court now involves a federal law, the Defense of Marriage Act, which forbids the federal government from recognizing gay marriage even in those states where gay couples have the legal right to marry. This law therefore steps on the state’s prerogative in the way Thomas previously indicated he didn’t think it could. If he stays true to his reasoning in Lawrence v. Texas, he may view DOMA as an unwarranted intrusion on the states’ rights.
There is also the fact that Thomas is himself interriacially married, a right in the U.S. that was not fully legal until the 1967 Loving v. Virginia Supreme Court case. The case was decided when Thomas was 19 years old. He may therefore be inclined to view the gay couples desiring to get married with some sympathy.
I should make clear I claim no inside knowledge on Thomas’ thinking nor am I ordinarily a legal commentator, so take this with a grain of salt. Still, Thomas’ thinking on gay rights has shown a strong libertarian streak that has not gotten the attention it deserves.
UPDATE: My article is not exactly winning converts. John Tabin of the American Spectator emails:
Well, the part about you not being a legal commentator is correct. Thomas’s dissent in Lawrence (not a concurrence — I think you meant that he concurred with Scalia’s dissent, but “concurring opinion” generally means concurring in the judgment, so your usage is confusing) is a lot less important than the fact that he joined Scalia in rejecting both Kennedy’s majority opinion and O’Connor’s concurring opinion. The argument with O’Connor seems especially significant; it touches directly on the equal protection questions at issue in Hollingsworth and Windsor. Thomas joins Scalia in resisting the application of the 14th Amendment to gays as a class. It would be very surprising if he shifted his view on this, no matter how he feels about the policy question — the whole point of his Lawrence dissent was to echo Stewart’s declaration in Griswold that a policy can be both silly and constitutional.
Walter Olson of Overlawyered.com agreed, emailing: “For the reasons John (Tabin) gives, I’d also put the chance of a Thomas crossover as extremely slight.”
Jim Antle of the Daily Caller emailed:
Yeah, I just don’t see anything in that dissent that would make me think he’d apply it to DOMA. Maybe if DOMA did not allow states to recognize gay marriage at all, but it does. DOMA may stand in the way of federal recognition of gay marriage, but it’s been compatible with legal gay marriage in over six states.