A gay Connecticut Supreme Court Justice has called Clarence Thomas’ recent statements advocating for the reversal of federally-recognized same-sex marriage rights “hypocritical” due to the justice’s failure to not call for the repeal of a similar ruling allowing interracial marriage.
Andrew McDonald, a senior associate justice for Connecticut’s high court, blasted Thomas for suggesting — in a concurring opinion as part of a recent abortion-rights case — that the nation’s highest court should re-examine all cases dealing with “substantive due process” rights, referring to rights that have been conferred or recognized by courts, but are not specifically mentioned in the Constitution.
Among the “substantive due process” cases that Thomas said should be reconsidered by the court include the court’s 1965 Griswold v. Connecticut ruling, which allowed married couples to buy and use contraception without government interference, the 2003 Lawrence v. Texas ruling overturning state laws criminalizing homosexuality and same-sex relations, and the 2015 Obergefell v. Hodges ruling, which overturned state bans on same-sex marriage.
“Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn’t have much to say about his ‘Loving‘ marriage,” McDonald wrote on his Facebook page, according to CNBC.
The case referenced by McDonald in his post is the Supreme Court’s Loving v. Virginia ruling, which overturned state laws banning interracial marriage. Thomas is part of an interracial marriage with his wife, Ginni, who is white.
In the Loving case, Mildred and Richard Loving, had been arrested and sentenced to one year in prison for marrying one another in 1958. The sentence was suspended after they agreed to leave the state and not return for 25 years. The Supreme Court found Virginia’s law to be unconstitutional. Similar legal rationale was used in declaring anti-sodomy laws unconstitutional under Lawrence and bans on same-sex marriage unconstitutional under Obergefell.
While McDonald has declined to comment further on his Facebook post, he has previously been unashamed of his identity as a gay man. He married his husband six years prior to the Obergefell decision in a ceremony conducted by then-Stamford Mayor Daniel Malloy.
As Connecticut’s governor, Malloy successfully nominated McDonald to the Supreme Court, making him only the second openly gay man to serve on a state Supreme Court following his confirmation in 2013. Malloy later tried to nominate McDonald to the position of Chief Justice, but that nomination was rejected by the State Senate on a largely party-line vote. Yet McDonald was overwhelmingly reconfirmed to another eight-year stint as an associate justice last year.
Thomas’s concurring opinion is not the first time that the high court associate justice has attacked same-sex marriage rights, writing in his own dissent in the Obergefell case that “[t]he traditional definition of marriage has prevailed in every society that has recognized marriage throughout history.”
“Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government,” Thomas wrote, arguing for a strict constitutionalist approach to interpreting the rights granted by the U.S. Constitution.
“…[H]uman dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away,” Thomas continued. “…Our Constitution — like the Declaration of Independence before it — was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from — not provided by — the State.”
Jim Obergefell, the lead plaintiff in the 2015 Supreme Court case, told MSNBC host Joy Reid on her show, The Reid Out, that Thomas “doesn’t care about the LGBTQ+ community.”
“I’m just concerned that hundreds of thousands of marriages across this nation are at risk and the ability of people across this nation to marry the person they love is at risk,” Obergefell said. “And for Justice Thomas to completely omit Loving v. Virginia, in my mind, is quite telling.”
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