In a concurring opinion to Friday’s Supreme Court ruling overturning Roe v. Wade, Justice Clarence Thomas wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The rulings Thomas referred to guarantee the right to contraception, same-sex relationships and same-sex marriages.
Justice Clarence Thomas, a Black man, is married to Ginni Thomas, who’s white.
But those substantive due process precedents also include Loving v. Virginia, the Supreme Court’s 1967 decision that says that laws banning interracial marriage violate the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution. And Justice Clarence Thomas, a Black man, is married to Virginia "Ginni" Thomas, who is white.
Unlike Thomas, the other justices, both conservative and liberal, contended with what Friday’s decision could mean for cases that include Loving, and seven mentioned Loving by name.
But the only African American on the Supreme Court, and the only Supreme Court justice in an interracial marriage, doesn’t mention Loving at all. Though Thomas argues that all those other precedents should be reconsidered, he implies by his silence that the one that affects him personally is sacrosanct.
He doesn’t acknowledge that his decision and the decision of his conservative colleagues could theoretically give his own state of Virginia, which had to be forced by a Supreme Court ruling to permit interracial marriages, another shot at banning them.
I’m not the only one who believes Loving seems intentionally left out.
Attorney Gloria J. Browne-Marshall, author of “She Took Justice: The Black Woman, Law, and Power – 1619 to 1969,” told me Friday, “Clarence Thomas is in an interracial relationship that would not be supported under the legal theory he espoused today.” Not mentioning Loving, Browne-Marshall said, “makes him a hypocrite. … The word 'marriage' is not in the Constitution. If he believes in states’ rights, he’d also believe in states’ right to say a Black man cannot marry a white woman.”
The other conservative justices, all of who are white and married to other white people of the opposite sex, apparently found it necessary to describe, either explicitly or implicitly, Loving v. Virginia as a decision they believed was safe.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” Justice Samuel Alito wrote in the majority opinion. “They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” Alito argued that abortion was different because it dealt with “potential life.”
In his concurring opinion, Justice Brett Kavanaugh mentions Loving by name: “First is the question of how this decision will affect other precedents involving issues such as contraception and marriage —in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015),” he wrote. “I emphasize what the Court today states: Overruling Roe does not mean the over- ruling of those precedents and does not threaten or cast doubt on those precedents.”
But the three liberal justices, retiring Justice Stephen Breyer, and Justices Sonia Sotomayor and Elena Kagan, argue that Friday's decision does indeed cast such doubt.
The majority that says those precedents are safe has got to know that future justices won’t be bound to anything this court says.
“The law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things,” they wrote. “It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. … So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too — whatever the particular state interests involved.”
The Supreme Court's conservative majority, who said those precedents were safe, has got to know that future justices won’t be bound to anything this court decides, just as this court didn’t let itself be bound by the decision of the court that decided Roe v. Wade. All it would take to end Loving are five like-minded Supreme Court justices.
True, banning interracial marriage wouldn’t be a popular move. According to the Pew Research Center, in 2015, 17 percent of newlyweds and about 10 percent of married people overall “had a spouse of a different race or ethnicity,” and according to Gallup, 94 percent of adults are approving of marriages between Black people and white people.
Then again, polling has nothing to do with Supreme Court decisions. After all, according to Pew, 61 percent of U.S. adults say abortion should be legal in all or most cases, and the court just overturned Roe.
Conservative lawmakers have already said out loud that they’re thinking about Loving. Sen. Mike Braun, R-Ind., answered yes this year when asked, “So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?” But then his office backtracked and said the senator didn’t mean what he’d said.
Thomas seems to know what a quandary his own theories put him in. In his dissent in the Obergefell ruling, he called comparisons between gay marriage, which he’d overturn, and interracial marriage “offensive and inaccurate,” saying marriage between a man and a woman has a history that gay marriage does not. Entire papers have been written about which way Thomas would rule on Loving, and quite a few people have pointed out if he really believes in originalism — the theory that the text of the Constitution should be interpreted according to the original meaning of the words used — he’d also have to believe that Loving was incorrectly decided and that states have the power to ban his own marriage.
Thomas seems to know what a quandary his own theories put him in.
Even if he doesn't want it to be so, Thomas' argument Friday is an argument that, if accepted in whole, would hurt Black people. But Thomas has made a career of swimming against the stream when it comes to laws that help Black people. He lives in his own rigid conservative bubble.
The question remains, though, whether he’ll have the courage to stand on the opinion he published Friday if racists challenge the Supreme Court ruling that made it impossible for states to block his marriage to his wife.