Advocates for L.G.B.T.Q. rights on Friday sounded the alarm over Justice Clarence Thomas’s concurring opinion overturning Roe v. Wade, calling it a potential assault on the legal doctrine protecting a wide array of Americans’ civil rights.
In his opinion, Justice Thomas argued that the court should reconsider and overturn cases guaranteeing the rights to same-sex marriage, same-sex consensual relations and contraception, saying the foundational legal theory on which they are based lacks constitutional grounding.
Justice Thomas said, however, that he agreed with the majority that the decision striking down Roe should not “cast doubt on precedents that do not concern abortion.”
Policy advocates and lawyers with some of the nation’s leading L.G.B.T.Q. advocacy organizations expressed dismay and called his words a warning shot against any fundamental rights not explicitly enumerated in the Constitution, including protections for interracial marriage and how parents raise their children.
“When one right is taken away, every other right we’ve come to rely on in this country is at risk. It’s a dark day for civil rights in our nation,” said Jim Obergefell, the main plaintiff in the 2015 Supreme Court case Obergefell v. Hodges that legalized same-sex marriage under the Fourteenth Amendment,
Shannon Minter, the legal director for the National Center for Lesbian Rights, said the opinion put the nation “on notice.”
“We are going to look back on this day as a turning point in the history of our nation, and this is a wake-up call for anyone who cares about individual freedom.”
None of Justice Thomas’s colleagues signed his concurring opinion, and some lawyers urged caution about reading too much into it.
“The majority opinion is crystal clear that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,’” said John J. Bursch, a Republican former solicitor general of Michigan, who was on the losing side of the 2015 Supreme Court case that established a right to same-sex marriage.
Still, many supporters of L.G.B.T.Q. rights saw Justice Thomas’s words as a call to jettison modern constitutional jurisprudence. “The court has moved a lot of times in recent history to extend rights to people — not to take them away — and so this is a startling and shocking and dangerous ruling today,” said Gary Buseck, a senior adviser with the Gay and Lesbian Advocates and Defenders organization.
In his opinion, Justice Thomas agreed with the majority’s ruling that the right to abortion was not a form of “liberty” protected by the due process clause of the 14th Amendment.
He then argued that the court should revisit three landmark cases that have also relied on such legal reasoning: Griswold v. Connecticut, a 1965 decision declaring that married couples had a right to contraception; Lawrence v. Texas, a 2003 case overturning sodomy laws and legalizing same-sex sexual activity nationwide; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.
For any of those cases to be overturned, litigation would have to work its way up to the Supreme Court, and four justices would have to sign on to a petition to hear the case. The rights established in those cases could still be affirmed on similar or other legal grounds.
Mr. Obergefell said the Thomas concurrence distressed him.
“Justice Thomas makes it clear, once again, that he does believe some of us are more equal than others — that some of us don’t deserve to commit to the person we love,” he said.
L.G.B.T.Q. advocates warned that Justice Thomas had issued broadsides against the 2015 same-sex marriage case before.
In 2020, when the Supreme Court declined to take up the case of a Kentucky clerk who refused to issue marriage licenses to gay couples, he and Justice Samuel A. Alito Jr. issued a statement saying Obergefell threatened “the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.”
Justice Thomas’s opinion on Friday “would be profoundly shocking if it were coming from anyone other than Justice Thomas,” said Jennifer Pizer, the acting chief legal officer for Lambda Legal, which focuses on protecting the civil rights of lesbian, gay, bisexual and transgender people.
“It is simply bizarre and jurisprudentially mistaken to read the Constitution as if it were a catalog,” she added. “The Constitution does not say we have an explicit right to breathe or eat, but of course the government can’t deprive us of the right to breathe simply because the phrase is not in the Constitution.”
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