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Chill out, people. Despite media (mis)reporting to the contrary, neither a Supreme Court majority nor Justice Clarence Thomas individually comes close to wanting, as one headline put it, to “ban contraception [and] homosexuality.”
Nor, as my colleague Tiana Lowe convincingly explained, will any states do so, even if the high court revisits the question of whether and how those two things are constitutionally protected rights.
The very idea of any state legislature banning contraception is politically ludicrous.
Yes, Thomas did write a concurring opinion in last week’s Dobbs v. Jackson Women’s Health Organization anti-abortion decision that said the court should revisit the cases that created “rights” to contraception and same-sex marriage (and many others). Almost every news report on his concurrence, though, either buried or entirely ignored a key section of his opinion.
First, as to Thomas’s main point: The justice was repeating an argument he has made many times before — namely that the entire court-invented doctrine called “substantive due process” is an oxymoron. Substantive due process purports to discern and protect nonprocedural “rights” as they pertain to the constitutional phrase “due process of law.”
Any speaker of normal English would agree: “Process” is about “how” something is done, not about the content of an unspecified and ever-expanding list of human rights.
Therefore, writes Thomas, if the Constitution protects a value as a “right,” that protection must be found in clauses and phrases of the document other than “due process” itself. This means, he notes, that an entire panoply of rights-affirming cases was decided on the wrong basis.
What the dishonest or ignorant reporting fails to emphasize, though, is that not even Thomas concludes that all the “rights” attributed to “due process” are therefore null and void. Instead, he proactively suggests the rights may be guaranteed elsewhere in the Constitution.
“The question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated,” Thomas wrote. Helpfully, he provided an alternative: “For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”
Without getting too deep into the weeds of constitutional law, suffice it to say that Thomas for years has advocated what many constitutional scholars agree would be a logically justified resurrection of the “privileges or immunities” clause. The clause’s use was mistakenly treated as effectively null and void beginning with an 1873 decision known as the Slaughter-House Cases. Yet from a purely linguistic standpoint, doesn’t it make more sense that a “privilege” or an “immunity” is more akin to a “right” than a guarantee of “due process” is?
Thomas is not saying which supposed rights would pass muster under a proper historical reading of privileges or immunities, but a brilliant book out last fall by constitutional scholars Randy Barnett and Evan Bernick provides a comprehensive framework for figuring it out. One such right they believe the privileges or immunities clause secures is the “freedom of intimate association.” And, unlike the increasingly fanciful “discovery” of new “rights” through substantive due process, Barnett and Bernick’s The Original Meaning of the 14th Amendment locates privileges or immunities rights with reference to empirical, historical evidence in the traditions and text of the Constitution and laws of the United States.
In other words, those rights have been recognized through the operation of constitutional, representative democracy, not invented by judges philosophizing in what Thomas calls “ethereal” ways about (literally quoting a prior pro-abortion decision) a “concept … of the universe, and of the mystery of human life.”
As it is, none of the other conservative justices in the Dobbs decision joined Thomas’s call to jettison substantive due process or revisit the contraception or homosexuality rights cases. Even if they did, though, following Thomas’s path would be unlikely to overturn the effects of those decisions. Even Thomas, after all, has previously expressed agreement that the laws outlawing both contraception and homosexual relations were “uncommonly silly.” That’s not exactly the language of a justice trying to impose theocratic rule.
