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Justice Clarence Thomas sits with his wife, conservative activist Virginia Thomas, while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, D.C. (Photo by Drew Angerer/Getty Images.)

Justice Clarence Thomas sits with conservative activist Virginia Thomas, his wife, while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, D.C. (Photo by Drew Angerer/Getty Images.)

A predictable chorus of critics has risen to excoriate Justice Clarence Thomas for — in the chorus’s view — hypocritically excluding a case that established a constitutional right to interracial marriage from a list of constitutional rights Thomas believes should be overturned along with Roe v. Wade (1973).  A very brief sampling of the criticism is included below; the alleged hypocrisy cited by the critics is that Thomas, who is Black, is married to a white woman.  Therefore, according to the critics, Thomas is refusing to jettison a constitutional right he enjoys while simultaneously trouncing the rights enjoyed by others.

Jim Obergefell, the plaintiff whose namesake 2013 case recognized same-sex marriage as a constitutional right, is also among Thomas’s critics on this point.  Obergefell told MSNBC that Thomas avoided attacking interracial marriage because that issue “affects” the justice “personally.”

While these and similar critics may have scored a mundane debater’s point on the broader issue of picking and choosing one’s preferred constitutional rights in a highly generalized sense, their attacks generally ignore a key and crucial distinction made by Thomas:  the interracial marriage case to which the critics point — Loving v. Virginia (1967) — is based on an entirely separate clause of the Constitution than the cases Thomas said should be overturned.

That’s probably why Thomas didn’t include interracial marriage in the list of rights he envisions on the constitutional law chopping block.  The justice perceives a clear and precise separation between rights that arise from separate clauses of the Constitution.  Most of Thomas’s critics are blurring that line without recognizing or refuting Thomas’s logic.

To understand the distinction, examine what happened on Friday:  Thomas joined the majority and penned a concurrence in Dobbs v. Jackson Women’s Health Organization (2022), the case that scuttled fifty years of pro-choice jurisprudence.  Dobbs held that the U.S. Constitution does not protect the right to choose an abortion under either the equal protection clause of the Fourteenth Amendment or the due process clause of the same Amendment; therefore, the states may now regulate or criminalize abortion as they so choose.  Or, they may refuse to do so, as some states have chosen.

The precise clauses of the Constitution at play in Dobbs are critically important here.

What Dobbs Says

The majority holding in Dobbs examined both the equal protection clause and the so-called “substantive due process clause.”  The right to obtain an abortion could not be extrapolated from either of those two clauses, according to the majority.  However, the majority also said the Dobbs holding did not extend to any jurisprudential matters beyond abortion because no other cases involved the “potential life” of an “unborn human being.”  Therefore, other equal protection and due process clause cases remain good law, according to the majority.

Thomas concurred with the judgement but separately opined that the Court’s substantive due process cases were incorrectly decided and should therefore be rubbished at the request of the next available litigant.  The at-risk cases, according to Thomas’s list, included Griswold v. Connecticut (1965) (recognizing a constitutional right to contraception), Lawrence v. Texas (2003) (recognizing what Thomas referred to as a due process “right to engage in private, consensual sexual acts” [namely homosexual acts]), and Obergefell v. Hodges (2013) (recognizing a due process right to same-sex marriage).

Thomas’s gripe, which Law&Crime copiously detailed on Friday, was that there simply was no such thing as “substantive due process” — in his opinion.

Due Process

Substantive due process cases theorize that the word “liberty” in the Fourteenth Amendment includes several rights that are not directly spelled out in the Constitution.  The verbatim of the clause itself forbids “any state” from depriving “any person of life, liberty, or property, without due process of law.”

Thomas, however, said the only rights truly secured by the due process clause were those legal scholars and jurists call “procedural due process” rights.  Those rights, according to Thomas, include nothing but a guarantee of a mechanical and regimented governmental process — nothing more.

This paragraph lays out Thomas’s views on the matter (internal citations and some internal punctuation marks have been omitted):

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I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking  in  the  Due  Process  Clause.  Considerable  historical  evidence  indicates  that “due process of  law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.  Other sources, by contrast, suggest that “due process  of  law” prohibited  legislatures “from authorizing the deprivation of a person’s life, liberty, or property without  providing him the customary procedures to which freemen were entitled by the old law of England.” Either way, the Due Process Clause at most guarantees process.  It does not, as the Court’s substantive due process cases suppose, “forbid the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”

Thomas stood alone in his opinion; no other justice joined him.

The key, here, was process, not substance, Thomas argued.  Since Griswold, Lawrence, and Obergefell dealt with substance and not process, Thomas believed those cases should at a minimum be reexamined or at a maximum should be overruled.

Equal Protection

The interracial marriage case Loving v. Virginia is not really a due process case.  While Justice Earl Warren, who wrote the unanimous Loving opinion, did mention due process in a brief, terse, and cursory few lines, almost all of the opinion focused on the equal protection clause.

Thomas appears to draw this as a clear and harsh distinction.  Thomas didn’t suggest overruling interracial marriage rights because they flowed from a separate clause of the Constitution — the equal protection clause — a clause with a very different historical purpose and meaning.  The equal protection clause says a state cannot “deny to any person within its jurisdiction the equal protection of the laws.”  At its core, the equal protection clause is an anti-discrimination clause.  The Supreme Court has long said that the equal protection clause bans the government from creating a “suspect class” or “regulated class” of people based on characteristics such as religion, race, alienage, or ancestry.

A 1985 equal protection case explains:

These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.

Thomas didn’t sketch the precise outlines of his personal equal protection views in Dobbs, but he did mention in another abortion case, Whole Woman’s Health v. Hellerstedt (2016), that “the right against discrimination on the basis of race” is simply one of the rights “enumerated in the Constitution.”

And that’s the holding of Loving:  Americans have a right to be free of government racial classifications.  Thomas sees that legal concept as clearly embedded within the actual text of the Constitution itself.  To the contrary, he sees substantive due process as an “oxymoron” that “lack[s] any basis in the Constitution.”  That’s what he said in Dobbs.  He also called out the “facial absurdity” of Griswold’s analysis, which isn’t quite the same as modern substantive due process jurisprudence but which has since been interpreted as standing among the Court’s decisions in that area.

The Loving opinion explicitly noted that only 16 states — a clear minority — banned interracial marriage; the other states allowed it.  The Supreme Court therefore made no qualms about forcing the minority of states to coalesce with the majority.  Here’s some of the key language from the opinion; it lays out precisely why every single justice on the Court in 1967 agreed that Virginia’s ban violated the equal protection clause:

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person,” a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants’ statements as to their race are correct, certificates of “racial composition” to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.

The Loving court noted with extreme disfavor that Virginia’s Supreme Court of Appeals had previously upheld the Commonwealth’s interracial marriage ban for reasons that were “obviously an endorsement of the doctrine of White Supremacy.”  Virginia’s reasons, according to the U.S. Supreme Court’s review of a separate state court opinion, were “to preserve the racial integrity of its citizens,” to prevent “the corruption of blood,” to avoid “a mongrel breed of citizens,” and to avoid the “obliteration of racial pride.”

Thomas’s Envisioned Path Forward

Thomas’s concurrence sees the equal protection clause as separate and distinct from the due process clause.  He did suggest that the Court should undertake additional analyses if it desired — as he suggested it should desire — to strip away the substantive due process rights enshrined in current case law.  Such analyses might include a privileges and immunities clause analysis, Thomas wrote (citations omitted yet again):

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. 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. To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.

In another recent case, Thomas also championed the expansion of the equal protection clause to fill a gap left by his interpretation of the due process clause — but that was a case about a matter besides abortion.

Thomas’s critics have overgeneralized the issues by suggesting that the justice wants to keep some constitutional rights on the table while wiping away others.  While it may be tempting for some to shortcut Thomas’s thought process by retreating to assumptions about whether the justice’s personal life influences his thinking, the more relevant issues about two clauses of the Constitution are fully articulated, on the record, and worth more through and rigorous debate.  Thomas isn’t criticizing cases decided under the equal protection clause; indeed, in some areas, he has advocated for that clause’s expansion.  Thomas’s concerns are limited to substantive due process clause cases.  His writings are based on his interpretation of what that clause of the Constitution was designed to accomplish.  Whether one agrees or disagrees with Thomas’s theories is another matter; as noted above, no other justice joined his Dobbs concurrence.

Thomas’s concurring opinion in Dobbs is reproduced in full below:

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