WASHINGTON — The Supreme Court "should reconsider" rulings that rely on the same legal reasoning as Roe v. Wade, including ones that protect gay sex, same-sex marriage and married people's use of contraception, Justice Clarence Thomas wrote in an opinion released Friday.
In his concurring opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, enabling states to ban abortion, Thomas wrote that the high court has a "duty to 'correct the error" established in Obergefell v. Hodges (2015), which legalized same-sex marriage, Lawrence v. Texas (2003), which protects same-sex relations, and Griswold v. Connecticut (1965), which protects married couples' access to contraception.
Although Thomas signed on to the majority opinion, he wrote separately to urge the high court to reexamine these cases. All three rely on substantive due process, the idea that the Constitution protects certain rights its text doesn't explicitly mention. Thomas has repeatedly cast doubt on this legal principle, calling it an "oxymoron that 'lack(s) any basis in the Constitution.'" And, because "any substantive due process decision is 'demonstrably erroneous,'" the court needs to revisit the rulings, Thomas argued. "After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated," Thomas, who was appointed by President George H.W. Bush, wrote.
