Clarence Thomas’s decision has nothing whatsoever to do with this of course. Medico-political mumbo jumbo written to deceive. What we have grown to expect from rags like the NYT.
Clarence Thomas’s decision has nothing whatsoever to do with this of course. Medico-political mumbo jumbo written to deceive. What we have grown to expect from rags like the NYT.
The writer’s take on Thomas was a throw away to show his bona fides, KW. I agree with you that it was not necessary. Having said that, I do think Thomas wants gay marriage and contraception settled via legislation and leave the Constitution out of it.
Looking back on the recent history of the United States through the twentieth century - contraceptive and gay rights were certainly not afforded by either states’ or the federal gov’t - hence activists looking for constitutional relief.
If Clarence had his way (and not necessarily the rest of the conservative wing of the Court), in my opinion he would throw it all back to where governments failed to act.
Agreed. I was willing to listen to this writer until this "after 50 years of progress, a serious backlash against gay rights is growing in this country: One need only read Clarence Thomas’s decision in Dobbs to get a sense."
The LGBT lobby just got finished with a 1 month celebration of their pride (historically a vice, not a virtue) in screwing their own sex. This bizarre festival was trumpeted by every media outlet. Corporate logos were festooned with rainbows to show solidarity. Most major cities in the world bedecked their major thoroughfares with the LGBTQIAXYZ flag. American embassies flew gay pride flags. For the month of June, sexual deviance and oddity of all kinds was heralded and celebrated by the entire edifice of Western culture. And whoa to he who questions the wisdom of this sacrament, for he shall be cast into outer darkness where there is weeping and gnashing of teeth (with all the bigots in Alabama or Kentucky or some other red state.)
Based on the last month (heck, based on the last 30 years), , where, exactly, is this "growing gay rights backlash"?
I'm not seeing a backlash, but I live a pretty cloistered life in a small town.
While I have a close friend, a devout Catholic, who takes the "screwing their own sex" point of view, I have known more than a few gay men - and, delight of delights - lesbian women too, and my POV has softened quite a bit.
One queer friend and I discuss the matter pretty frankly, and he told me, "Do you think I LIKED getting hell beat out of me at school? Getting laughed at? I got to where even I hated myself for being who I was, but the fact is, it WAS who I was. People say, 'Just stop being queer.' I know you're (Jim) not a believer - if you decided tomorrow to become one, would you genuinely believe? Of course not. It's not a decision under your control." Made me think.
I really dislike the "trans" stuff because I see it as truly a mental disorder, and you don't treat those with surgery - even if it will make you a champion "female" swimmer. Homosexuality, OTOH to my eye is a different beast. It has been with humanity since the dawn of time; as a non-reproductive persuasion, you'd think it would have been eliminated from the gene pool by now. That it has not gives me great pause; nature does not do things without a reason.
And now the bullied gay kid and his friends have taken power and is bullying anyone who refuses to celebrate his lifestyle.
If this was about respect and tolerance, I would be completely on board. But at the point that you're forcing florists to work your wedding, harassing bakers who don't want to bake cakes, getting people fired for contributing to Prop 8 in California, and sending people to re-education if they use the wrong pronouns... that's not about tolerance.
I want a liberal society. I want a society where Jewish families can go to synagogue without fear, Catholics don't have to worry about their churches being vandalized, and where 2 gay men can walk down the street holding hands without being harassed. I want a liberal society and am willing to "live and let live" a great deal to obtain it. But it doesn't appear that the Left wants this at all. They want a society where ideological non-conformity is punished severely. Forced to choose between an illiberal Left society that hates me and an illiberal Right society that doesn't hate me, I know which I would have to pick.
I think that's the point. Things were stable; now people who don't wish this nation well are using every weapon they have to cause dissention and hatred among groups who had been tolerating each other's peculiarities just fine. Division, disorder, and chaos are their weapons of choice. Oh yes, and violence. Lots of violence, tolerated and even encouraged by one political party.
I can assure you that my friend, the height of whose aggression was, upon helping my wife erect an electric dog fence, put his hands on his hips and proclaimed, "God, I feel SO butch!" is not in that group and does not want to be.
I am a lawyer and although it's clear from Justice Thomas's Opinion that he firmly rejects any legal basis for the use of "substantive due process" in deciding cases (he thinks the concept is imaginary), he only mentions Obergefell along with other cases that did rely on substantive due process as one of many cases that may need to be re-examined in the future. I don't see how it's a fair call to state that Thomas is therefore showing animus towards homosexuals.
Sheryl, Thomas stated that same-sex marriage should be revisited.
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
And I don’t think it’s unreasonable to assume Thomas is a homophobe!
“has been a reliable vote against LGBTQ rights. He dissented from its pro-LGBTQ rulings in 1996’s Romer v. Evans, which struck down an antigay state constitutional amendment in Colorado; 2013’s Windsor v. U.S., which struck down the main part of the Defense of Marriage Act, and Hollingsworth v. Perry, which let stand a lower court ruling invalidating California’s Proposition 8, an anti-marriage equality ballot measure; and 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. In his dissent in Obergefell, he wrote, “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement” — marriage being that “entitlement.”
He joined in the court’s 2018 decision vacating the Colorado Civil Rights Commission’s finding that a baker illegally discriminated against a gay couple by refusing to create a wedding cake for them. However, he wanted the decision to go further and expressed concern about whether marriage equality could be used to stamp out freedom of speech and religion.”
You missed Thomas's and Sheryl's point. Thomas said nothing about contraception, gay marriage, or sodomy. He said substantive due process is not an appropriate foundation to sustain those rights.
Getting to the answer the right way matters a great deal to Thomas. Some find it tedious. Those people tend to be much more tolerant of judicial overreach and fiat. Those people want their preferred result and don't much care how they get there.
DemonHunter, You say: “Getting to the answer the right way matters a great deal to Thomas. Clarence said: “…we should reconsider all of this Court’s substantive due process precedents…” Clarence Thomas mentions multiple “substantive due process.” decisions except this one: interracial marriage. I understand he is married to a white woman, is he not? Is this not a glaring inconsistency? How does one explain him bringing up gay marriage, but not his interracial marriage? So much for his integrity!
Not inconsistent. Interracial marriage has already been addressed through a variety of other methods and does not rely on substantive due process (sodomy, contraception, and same sex marriage rely on substantive due process). That's why he does not include it on his list.
edit: But it, interracial marriage, no longer requires substantive due process to justify its existence.
In the alternative, assuming no laws preventing racial discrimination exist (which of course they do) Thomas would argue that the Privileges and Immunities clause of the 14th would still support a prohibition on anti-miscegenation laws.
Loving v. Virginia, 388 U.S. 1 (1967) was the case in which the Court held that the Virginia anti-miscegenation laws violated the Due Process Clause of the Fourteenth Amendment. After assessing the case facts with “strict scrutiny”, the Court also held the laws violated the Equal Protection Clause of the Fourteenth Amendment. On July 11, 1958, Mildred and Richard Loving were apprehended in their homes in violation of Section 20-58 and 59, which were the anti-miscegenation laws that prohibited leaving the state to interracially marry and returning to the forum state as well as labeling this activity a felony. Mildred, a woman of color, and Richard, a Caucasian, both plead guilty, received one year in prison, but had their sentences mitigated on the condition that they not return to Virginia together for 25 years. Unaccepting of this cruel reprimand, the Lovings’ sought legal relief, an endeavor that lead their fate to be overturned by the SCOTUS. Relying on the federal and state obligations to honor each citizen their due process rights and equal protection under the 14th and 5th amendments and guiding public policy to recognize the sanctity of protecting the private life, the SCOTUS unanimously ruled the anti-miscegenation laws unconstitutional, a monumental decision that restored another political and social right for minorities (specifically blacks).
Call bullshit all you'd like. Interracial marriage does not have to rely on substantive due process to be protected. Loving did of course rely on it (and equal protection). Of course substantive due process exists. So does the right of equal protection. My point is that the outcome of Loving can be reached without relying on substantive due process. Because that it true it did not belong on Thomas's list.
Substantive due process has been a way for SCOTUS to enforce contentious social issues in an attempt to settle them. It hasn't worked with Roe obviously but I think gays right to marry is constitutional regardless. Our rights are as individuals not as members of a group. If individuals have a right to marry then likewise gays - they're 2 individuals each with that right.
KJMAC: No, it hasn't. Substantive due process enforces NON-contentious social issues. It applies to non-enumerated rights deeply embedded in our history and traditions which are necessary for ordered liberty.
Abortion cannot pass that test because it fails both prongs. Contraception, same-sex marriage, and sodomy also fail. None is a traditional, recognized, historical norm. This does not mean they should be prohibited. Thomas simply suggests that the privileges and immunities clause is the better authority for supporting them.
Interesting comment. Would you care to provide some examples of these "non-enumerated rights deeply embedded" but that are protected by "substantive DP"??
Probably the most controversial is privacy. Not privacy itself because several Bill of Rights protections implicate such a right (search and seizure for example). The controversy is when it is expanded. Justice William O. Douglas, who once found a tree had standing to sue in a court of law, argued that the Bill of Rights casts penumbras (shadows). Emanating from those shadows are non-enumerated rights such a right to contraception, right to an abortion, etc.
Other rights that pass the substantive due process test mentioned above include things like the right to marry, right to have children (which is also argued negatively, the right not to have children).
Thomas objects to this doctrine of substantive due process for two reasons. First, he objects to the court creating non-enumerated rights that legislatures or the amendment process can achieve. He believes in the machinery of the democratic process, he recognizes sometimes the process will fail or produce bad results. He simply believes, imo correctly, that the Court is just as fallible but those decisions are much more likely to linger and fester.... see for example... Roe. Second, he thinks that the original intent of the privileges and immunities clause is the more appropriate foundation to support these rights currently based on substantive due process. P&I basically stand for equal protection. Originally, in Art. 4 of the constitution it worked the prohibit states from discriminating against citizens of other states. (Hmmm... CA bans state travel to MT?) The 14th created national citizenship. Art. 4 protected against "intra-state" discrimination but not "inter-state" discrimination. The 14th wiped out that distinction. It's been a long time since I studied this so I've probably erred in some of the above but the broad strokes I think are reasonably accurate. If not I'm sure I'll be corrected 😉
I agree that there are other legal ways to approach a right to gay marriage besides substantive due process. But it's like abortion in that there is still no easy way to craft a "solution" that fits completely.
I see marriage as an organic human institution based on family formation through procreation, that doesn't translate perfectly to the general idea that any two people can be married. I do want to see all 50 states support gay marriage even if not based on the Federal Constitution.
I think the ban on gay marriage was a blue law based on religious discrimination common in the past but not compatible with the concept of equal rights. It treats a person differently based on others’ opinion of that person. I see it as analogous to racial discrimination.
I can make a pretty strong case based on Plato or Aristotle opposing gay marriage. The idea that the only reason is religious animus is pretty absurd.
Here's a shot: The first goal of any society is to produce, raise, and acculturate the next generation to be capable of doing the same. Does treating same sex relationships the same as hetero-sexual relationships help achieve that goal? In an Aristotelean sense, does it promote the common good?
While I can see many ways that legally recognizing and subsidizing gay "marriages" promotes individual happiness (which is a good), I think it's very hard to make the claim that it is in the common good. And considering that we now have 25% of college girls self-identifying as LGBT, it should be pretty clear that such policies have had very nasty side affects that directly harm that "produce the next generation" goal.
I’d say yes, same sex couples can produce and raise the next generation. I think I saw on this very blog that Bari and Nellie are due to be parents soon.
I trust it's obvious that a same sex couple cannot "produce" the next generation without extraordinary (in the literal sense of "other than ordinary") methods.
The question from a policy matter is whether such relationships deserve the imprimatur or the state. State approval and subsidy (and that's what legal marriage is) is generally based on something advancing the "common good" in some way. As I said above, I do not see how same sex marriage does that, and the current woke LGBT insanity is clearly extremely damaging to the common good. I know many here want to separate those two, but both are rooted in the same philosophy ("you can't regulate what I do with my body") of maximal individual autonomy.
I understand this is a touchy subject in light of our hostesses here; hostesses who I have come to (unexpectedly) respect a great deal. But the original commenter said that the ONLY reason to oppose redefining marriage was religious bigotry. This is demonstrably not true. I would want Bari and Nellie to be able to live the life they want free of discrimination or hatred. However, that doesn't mean I support pretending that their relationship is ethically, legally, or morally identical to a heterosexual married couple. It is not. How is being forced to pretend that two women can be married to each other any different than being forced to pretend that women can have penises or men can get pregnant? (And please don't say that someone else's gay marriage will never affect me. Ask Jack Philips or Barronelle Stutzman about that theory.)
I don't see a marriage contract as being primarily to advance some common good I didn't get married for society, I got married for myself. Legal marriage is about the same things as any legal contract plus provisions regarding children.
Hetero couples can marry without the demand that they reproduce, people can reproduce without getting married, and a same sex couple who are fertile can reproduce. There are hetero people who use sperm banks and surrogates - especially in Hollywood, from what I hear.
I see no comparison with same sex marriage to trans. My problem with trans is that it is using govt to control speech and basic rights for others. Losing one's job for mispronouning someone is not something we even heard of a few years ago. But gay people have always been around.
As long as adults want to trans themselves through whatever surgeries or chemicals they want I don't care. It's their business.
But I think it's gotten extremely out of control extremely quickly and I don't think we're being bludgeoned with transness because everyone cares so much about trans people. I think it's being used to disorient people and destabilize society.
Agreed. I got married for the same reasons. But marriage is not just a "contract". We privilege marriage in countless ways small and large, beginning with the tax code. Demoting the oldest human institution in the world to "the same thing as any legal contract" kind of misses the point. It's not "a legal contract plus children"; the production of children has been the point of marriage in essentially every major human society that has ever existed. There is no "demand" that you reproduce, but reproduction (produce and raise the next generation) IS the historical reason we privilege the marital relationship so extensively. Might modern technology change that? Absolutely. But unless you're milling to embrace Huxley, I would be somewhat wary.
You seem very uncomfortable with the idea of "the common good", especially that government might actually seek to deploy its power in pursuit of it. Liberals (and libertarians) in the tradition of J.S. Mill often have difficulty with this. However society is a group of people who share a set of values, norms, myths, and ideas -- in short, they share a definition of "the good". Society cannot be, as Mill suggested, "I have the right to do whatever I want until your nose begins", because 1) the conflicts between rights and noses will multiply geometrically and 2) all other social norms and values must collapse against this definition. In other words, Mill style liberalism (which gay marriage, trans rights, "my body my choice" are all based) ends up dissolving any society that embraces it. I'm sorry for giving such a big answer to a specific question, but most political debates are really philosophical disagreements.
Patrick Deenen wrote a book on this called Why Liberalism Failed. It's very good and explains the problem far better than I can in a brief comment.
You can see analogies all you want. Anyone can do that 4th grader analysis. The 13th, 14th, and 15th Amendments were adopted after the Civil Way - which was about slavery (notwithstanding that the slave states thought it was "states' rights - yeah, rights to have slaves). The purpose of those amendments was to bar slavery (though it could still be OK for prisoners - read the 13th!), citizenship of born and naturalized persons (but no Indians until 1924), and the right to vote - for people of color or former slaves - no mention of homosexuality here). Those Civil War Amendment have little to do with all the expansion of "rights' the Supreme Court came up with under the Equal Protection banner. It is inventing rights out of whole cloth.
See my comment somewhere else in this thread (I do not know how to link it in Substack). I addressed the 9th. All the 9th says is the just because a right is not enumerated in the US Constitution, that does not mean it doesn't exist - that determination, per the 9th, is for the People. The 9th says nothing about the actual existence of any right and for certain says nothing about any such unenumerated right being protected by the US Constitution.
OK, I will write this only once and hope you get it:
The issue is not whether you as an individual have any particular “right” but whether the US Constitution protects such right from being interfered with.
Pretty easy to understand though an amazing number of folks just don’t get it.
I am "saying" that the US Constitution protects as a US Constitutional right only those things - rights - that are stated in the Constitution. First Amendment rights - freedom from the government interfering with speech, religious affiliation and expression, press. Second Amendment - freedom from government interference with citizens bearing arms. 3rd Amendment - government may not quarter soldiers in citizens' homes. 4th - freedom from the government conducting searches and seizures. Etc. Etc. Etc.
In other words, unless a "right" is "enumerated" in the US Constitution, such right, while it may still exist, is not a US Constitutional right. Maybe a state statute or constitution protects such rights, but not the US Constitution. The US Constitution did not purport to determine all rights or to exclude "rights" in fact it specifically stated in the 9th Amendment that things not enumerated in US Constitution may still exist, but they are for the People (not Supreme Court Justices) to decide.
The way to understand this is to get your mind wrapped around the circumstances of the Colonies at the time of the Declaration of Independence -- you know, breaking away the lord and master known as the King of England, aristocracy and all that European crap. Tyranny of the King, not decision of the people.
So the US Constitution is written in a manner of providing negative rights, not, with a few exceptions, positive rights. The Constitution lays out the form of government the colonies will have once united, the powers and authorities the parts of government will have. That is the powers of the legislature, the courts, the executive - in each case of the federal government. That is the basis for each of the colonies accepting this form of government and Constitution and ratifying it.
Unless the US Constitution explicitly protects something, it is not a US Constitutionally protected right. You might still have such a right, but you need to look elsewhere for protection - state law, etc.
Is it conceivable that a gay couple could be authorized to marry under a state constitution? Of course. Under state law? Of course. Under the US Constitution? That was what Thomas was writing about. That the idea of "substantive due process" was invented (in the 1930s and really came into force in the 1950s and thereafter) and is not part of the US Constitution when written and not - other than by consulting a Ouija board - part of our form of republican government seems lost on folks.
And on your question of gay marriage, it is pretty much beyond dispute that homosexuality was a crime and homosexuals could not be married in any state in a sanctioned fashion at the time of the US Constitution. That was the frame of reference when the US Constitution was ratified. If you think that was the result merely of religious bigotry you need to do lots of reading on the history of human society. That we may think it acceptable today is beside the point of the US Constitution. That many do accept it is simply a basis for states to legalize it - as many have.
Get it? "Substantive Due Process" is a theory that is not found in the US Constitution itself (other than using a Ouija board to mush together the due process clause of the 4th and the equal protection clause of the 14th amendments) but indeed was used by many Supreme Court decisions - ones that strayed from the text of the Constitution but that fed the "feelings" of fairness of the then sitting Justices - it is not in the Constitution itself.
You may not like this; you may disagree with it. If so you are simply part of the debate on interpretation. If you think that Supreme Court Justices should sit as an ultimate decider of conflicting social theories and pressures, you have given that Court way too much power. You have divested the People of their right to decide what sort of society that will have. You will not like where it might lead to.
You could simply copy and paste. But be careful, there is another view.
I happen to believe that the notion of the federal government being a government with limited powers is what the Founders intended. It was why 13 independent and self ruling Colonies agreed to live within a national government framework. I do not believe the subsequent amendments, post-ratification, changed that concept. That leads to the idea that the Constitution is one of negative rights - things the federal government may not do to citizens.
Others view the concept of negative rights and a limited federal government as being somewhat undone by the 14th Amendment and now permitting "positive rights", things like what "substantive due process" permits (in their view). This comes out of a view that the due process clause to the 14th amendment as well as the equal protection clause of the 14th together with the the 5th Amendment's guarantee of "due process” now changes the relationship between the federal government and the citizens of the country for many purposes..
Equal protection is what the federal courts usually use to create "rights", the state of play at the original ratification be damned. What substantive due process ends up doing is permitting the unelected Justices sitting with lifetime appointments, to act as the supreme judge of morality and social order. No democracy, neither direct nor representative necessary!
The 13th, 14th, and 15th amendments were enacted in the wake of the Civil War. Historians of the Constitution actually call them the Civil War Amendments. They were addressing slavery, the cause of the War, and changing that aspect of the original Constitution to rid it of slavery and to assure that former slave states would treat freed slaves (whether born in the US or not - some were recent captures from Africa) and their descendants as they treat all other citizens. The South reacted poorly, despite having lost the War. Poll taxes, separate schools, and debtor prisons essentially recreated a slave-like state. Jim Crow, Segregation, etc., resulted from this bad faith conduct by the South - and some fellow travelers in the North. So the losers actually prevailed on the precise thing the War was fought over. In took the Civil Rights Acts of the 20th Century to fix that.
All that is a long winded way of saying the 14th Amendment was directed at the citizenship rights of former slaves. It was not a gaping hole in the Constitution by which the Supreme court could find penumbras and emanations.
Others disagree with me on this history and interpretation, so be ready for pushback.
Thank you. I will read it, and try to learn something and understand all this. I spoke to my friend who went to law school about this yesterday. She said substantive due process rights supposedly emanate from "penumbras." And Supreme Court invented penumbras by mashing 4th and 14th amendment--and boom! She said: "even back then I learned quickly that it was unpopular to question the validity of penumbras so I just kept my mouth shut!."
I really appreciate your lengthy and lucid explanation. I didn’t fully understand it before, and the majority of the public definitely doesn’t get it. This should be an educational oped every newspaper in the country. Sadly it won’t be.
I appreciate the clarity and intelligence with which you set forth this explanation. Not many “got” this before, and I certainly hope at least a few will “get” this after reading. I am saving your answer to share with those with whom I correspond who do not “get” it yet. I’ll give Running Burning Man credit, of course. Never give up hope.
No need to credit me. Many wise folks before me came up with the theories. I learned the theories of "substantive" versus "procedural" due process 40 years ago in law school. I did extremely well in law school (not trying to brag on myself) and understood this intellectually at the time. Didn't really understand it - at least not viscerally - until years later.
This is an active debate today as it has been for decades about whether SDP really should be or whether is it made up a framework for Constitutional analysis - of which penumbras and emanations is are bastard offsprings thereof.
You can probably tell where I come out on this analytical method, but where I stand on actual rights (gay marriage, abortion, etc.) in the entire scheme of things could surprise you.
Where I stand on gay marriage and abortion surprises many in my conversation circle who are aware of my opposition to Roe, etc. I support legislated decisions, and personally support abortion through 15 weeks, with emergency exceptions. As to “same sex marriage” I believe government should stick to enforcing “civil union” contracts, and leave the sacrament of marriage to churches. I wouldn’t be surprised at all if you held similar views.
McNeil's single line about the Dobbs concurrence is an unfortunate distraction in an otherwise well-written and informative piece. It was completely unnecessary, didn't even make the point it was trying to make, and showed that McNeil did not understand what Thomas was saying in his concurrence (or that Thomas has been making those points in solo concurrences or dissents for about 20 years now).
Apologies but I cannot regard this as an informative piece. Well-written, yes, the writer is skillful, but.... These lines earlier are a dead giveaway among others: "I blame several factors: shortages of vaccines and tests". Really, after Covid, and the real abiding concerns about vaccines and tests? There are other more complete and accurate pieces on Monkey Pox free of the amateur and fear mongering aspects of this.
Good catch, particularly the "shortage of tests." Really? How would you test for Monkeypox BEFORE there is any physical evidence? Test the entire population? Set up road blocks?
Once the postules erupt why test? The physical evidence would be conclusive.
As far as vaccines go, if there is no immediate need to vaccinate for a particular disease why would any sane government go to the expense to stockpile massive doses of vaccine?
McNeil probably harbors hopes of his cocktail parties returning. It's a shame but he is overall a credible science reporter, and this is really the first monkeypox article I've taken remotely seriously. I have just assumed the MSM ones are basically pharma-funded psyops.
That wasn't the impression I got from his article. He had to throw in his bonafide liberal card by slurring Justice Thomas. It if hadn't been Thomas it would have been Trump. It's a mindset.
I call it out when I see it but I also realize where it comes from. It is so intrinsically wired into his being that he can't help himself. If Bari is editing she won't notice it either because her inclination goes that way too.
We have to call it out but we also have to be gentle about it.
Mr. McNeil is nearly a man without a country. He lost his prestigious position at the NYT. We need to overlook some of his innate prejudices.
Naomi, when Donald wrote, “One need only read Clarence Thomas’s decision in Dobbs…” Justice Thomas was basically saying the court should consider looking into same-sex marriage!
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
Ah yes, those halcyon days when it was perfectly acceptable at all levels of society and media to relentlessly call a sitting President a complete idiot, the new Hitler, and a chimpanzee.
I mean, the Democrats are still the only party to have one of their presidents accused of being a secret Kenyan hiding behind a forged birth certificate.
I would say it's more about hoping some lefties will take the rest of his piece seriously as long as he meets his Orange Man Bad quota (or in this case, Clarence Thomas).
It's political in-group signaling to try to avoid being written off as a "right wing post" by people who like their echo chambers good and airtight.
Thanks for calling it what it was. Maybe it’s just splitting hairs but it annoys me that MSM keeps calling it “Thomas’s decision”. Alito wrote the majority opinion and Thomas just wrote a concurrence.
It's amusing how these liberal/Lefties manage to always inject a sling/slur/hit against their favorite righty trope. It's either Donald Trump or Clarence Thomas.
Wow, I'm a pretty online person but I didn't see this take coming. I even scrolled back up to make sure I hadn't accidently entered the comment section to a different article. Oh well, just came to say thanks for the info Mr. McNeil. As for KW Norton...wow...
I would appreciate, if not a verbatim quote of Thomas' decision, at least a link to it or a capsule summary. The oblique reference without explanation leaves an impression that I suspect is not honest or accurate.
I read the decision on the link below. As I read it (disclaimer: I’m an engineer, not a lawyer), Justice Thomas does argue that any court decisions, like gat marriage, substantively based on the 14th Amendment) could (I read “should”) be revisited.
Dobbs was about the baby, there are no innocent victims in gay marriage or any of the other issues Thomas refers to. It is the human being killed in utero that makes abortion a unique problem of conflict between right to choose, privacy and another right to life.
But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
Yes, Thomas rejects substantive due process and has for pretty much his entire career. Don't confuse that with the notion that he supports prohibiting contraception et al.
In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967),
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
I think that's a fair reading of Thomas' opinion. However, it should be noted that there are probably eight justices opposed to that, four said so in their Dobbs opinions, I assume the three Dobbs dissenters would also be opposed and the chief justice wouldn't want to deal with such a controversial issue. Much of the media has tried to stir up panic over this, both to get clicks and to promote pro-abortion activism. I think the chance of gay rights, gay marriage or interracial marriage being banned is negligible.
I don't think that's what Thomas meant. I think he was pointing out that many of these "rights" we now take for granted are based on some of the same flimsy legal reasoning that Roe was, and that it would be better not to assume that those "rights" are on solid ground.
Exactly. And Obergfell is one of those decisions. Like Roe, if overturned, state legislatures could easily permit same-sex marriage via statute. Thomas is trying to make the Constitution and constitutional jurisprudence make sense. That's all. He's not anti-gay.
Yes, from what I read Thomas wasn't arguing that gay marriage should be revisited to be made illegal again, he was pointing out that Obergefell's reliance on the Fourteenth Amendment and the made-up judicial doctrine of "substantive due process" is flimsy Constitutional grounding, whereas a stronger argument might be made from elsewhere, like from the "privileges and immunities clause."
Leah, Thomas did indeed state that same-sex marriage should be revisited.
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
And I don’t think it’s unreasonable to assume Thomas is a homophobe!
“has been a reliable vote against LGBTQ rights. He dissented from its pro-LGBTQ rulings in 1996’s Romer v. Evans, which struck down an antigay state constitutional amendment in Colorado; 2013’s Windsor v. U.S., which struck down the main part of the Defense of Marriage Act, and Hollingsworth v. Perry, which let stand a lower court ruling invalidating California’s Proposition 8, an anti-marriage equality ballot measure; and 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. In his dissent in Obergefell, he wrote, “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement” — marriage being that “entitlement.”
He joined in the court’s 2018 decision vacating the Colorado Civil Rights Commission’s finding that a baker illegally discriminated against a gay couple by refusing to create a wedding cake for them. However, he wanted the decision to go further and expressed concern about whether marriage equality could be used to stamp out freedom of speech and religion.”
Well, you pretty much blew your entire arguments with those quotes, smartypants. All anyone needs to do is read them to know that Thomas is concerned only with jurisprudence, and has zero interest in the sexual and gender issues that so obsess you.
I think you misread my comment. I didn't say he didn't want to revisit it, but that his reason for wanting to revisit it is because he objects to the grounding for the decision, namely the judicially constructed doctrine of "substantive due process." He believes the legal theory underpinning it is Constitutionally void and wants to see all the decisions that relied on it overturned and re-decided on more direct and valid Constitutional grounds. I have no idea what his personal views on homosexuality and gay marriage are, but he has been very consistent in his strict constructionist approach to Constitutional questions and legal theory.
Leah, I stand corrected. You say Thomas “…has been very consistent in his strict constructionist approach to Constitutional questions and legal theory.”, His inconsistency screamed out loudly when applying “substantive due process.” when it comes to interracial marriage. How does one explain him bringing up gay marriage but not his interracial marriage? So much for his integrity!
“In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967),”
I guess you and I have a different definition of hypocrisy. Along with Obergefell, he cited Griswold as a decision that needs revisiting (again, because he objects to "substantive due process" as a legitimate Constitutional grounding), which says to me that he would be willing to risk his own, very personal stake in the outcome for the sake of maintaining a strict constructionist approach to jurisprudence. I think you could only claim inconsistency on his part if he had exempted Griswold from the list of "substantive due process" decisions needing a Constitutional reframing.
In Griswold v. Connecticut, the court ruled about privacy within a marriage. In Loving v. Virginia, the court ruled about who you could marry: hopefully, you can see the distinction?
Sure. I'm a big fan of Justice Brandeis, who said that it is sometimes more important that a thing be DECIDED than it be decided RIGHT. Having said that, though, for certain Roe v. Wade should have been revisited because its effects reached far into the future and tainted the Court. It wasn't just a decided case, then over. A terrible precedent.
I understand Justice Thomas' desire to get things right all down the line, but am not sure whether revisiting other decisions is the best thing. As Johnny 5 said, "Need input."
Why don’t you research it yourself? In the aftermath of the Dobbs decision there was hysteria about how Thomas had written something about how other prior SCOTUS decisions were poorly reasoned as was Roe. But in the Dobbs decision it was stated that the decision didn’t extrapolate.
So the MSM of course claimed, They’re coming for gay marriage next!!
NCMaureen why do you think it’s illogical to extrapolate, “They’re coming for gay marriage next!” When Justice Thomas says: “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
just Me it sucks so bad here I will buy you a first class ticket to any workers paradise you choose . What say you? You want Russia , China or North Korea , you would be so happy there no complaints
Jerry, I’m confident that our forefathers who penned the Constitution of the United States decided that when they were writing it, the First Amendment meant: no badmouthing the government, particularly the Supreme Court. I mean, what other explanation could there be for your comment?
no what i'm saying if things are so bad for you here I'm giving you a ticket out to some workers paradise where you will be happy , no Thomas no Trump just dicktaters , your kind of people . No one to blame for your failures there
@Just me: Just like abortion was not made illegal by Dobbs; it was simply sent back to the states to decide, Thomas opines that same-sex marriage should also be decided by the states. It is existentially important for liberty and the Constitution that powers that do not belong to the federal government should be wrested away from Washington and restored to the states.
Jan, by taking away a right that was guaranteed by the federal government, essentially makes it illegal in other jurisdictions. You can play the silly word game if you like, but essentially it is taking a right away: for the first time in America’s history!
Two things: 1. Rights are not gifts from government. Rights precede it and can neither be granted nor taken away by government. Even the late RBG admitted that the Roe v Wade decision was not properly derived from the Constitution. By contrast, the Bill of Rights was not just dreamed up by some justices. Those rights were established by amending the Constitution. 2. The Constitution is not a silly word game. The 10th Amendment reinforces that the federal government is supposed to have limited powers: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Consequently, California, New York, or any other state whose legislature so decides, can codify abortion rights in any way it wants. New York codified abortion rights three years before Roe v Wade and will continue to allow it after it has been struck down, https://www.ny.gov/programs/abortion-new-york-state-know-your-rights
Jan, balderdash, “Rights are not gifts from government. Rights precede it and can neither be granted nor taken away by government.” Right within the declaration of independence says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights," that among these are Life, Liberty and the pursuit of Happiness. When the government executes an individual, are they not taking away their: life liberty and the Possibility of pursuing happiness? So, you see, Jan, the government can indeed take away rights!
Thank you for clarifying my point better than I could. For the political game called the United States of America, the Declaration of Independence is the spirit of the game, while the Constitution can be understood as the rules of the game.
From the Declaration, you highlighted the phrase "all men are endowed by their Creator with certain unalienable Rights..." Notice two concepts that make my point:
1. Creator. 2. Unalienable Rights. Creator refers to God (or if that is too unpalatable, Natural Law), not government, as the origin of our rights. Therefore the conclusion: Rights are not gifts from government.
Unalienable rights are rights that cannot be taken away from the people. If unalienable rights are simply taken away, then the rules of the game have been broken. If the rules have been broken, free-born men and women must reclaim those rights by any and all means necessary. If our rights are stripped away by the process of amending the Constitution, then the spirit of the game called the United States of America has been extinguished.
Your point that executions are proof that government can take away rights doesn't work. When a court-ordered execution occurs, it is done because that person broke the rules of the game, ie is a criminal who has violated the rights of others. Because government exists to protect our rights, it must punish those who violate the rights of others. By contrast, the logical conclusion of your argument would be that government would remove the rights of all people when one person breaks the rules.
Jan, here are the facts, at the beginning of the year, a person had a constitutional right to get an abortion in all the states of the United States of America. That constitutional right was made null and void by the Supreme Court, so for the first time in the history of America, a right was taken away.
Is that so? Where in the Constitution would I have found this right? Or is it perhaps in one of the amendments? It's not. It's only found in a poorly argued opinion. So rather than a constitutional right, it was a court order that was an end-run around the legislative process. Now that decision is back where it belongs, in the state legislatures. Abortion will continue to be legal in 24 states.
Interracial marriage is based on “…the theory substantive due process,…”.
In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967),
But it no longer requires substantive due process to justify its existence.
In the alternative, assuming no laws preventing racial discrimination exist (which of course they do) Thomas would argue that the Privileges and Immunities clause of the 14th would still support a prohibition on anti-miscegenation laws.
At the end of the day you are missing the point either willingly or by being impervious to reason.
Thomas is arguing that the doctrine of substantive due process is messy and flawed.
He is not arguing that we should criminalize contraception (et al).
You are of course free to believe what you’d like but clinging to fever dream scare tactics from politically motivated sources is not going to lead you to water.
By the time we get to the cowardly tarring of Thomas’s decision without a link we are already feeling so serially abused as readers by having taken any of his fear mongering seriously we just shrug and note the source.
This is what I wrote. Not sure why someone had enough of a problem with it to demand it be deleted.
I think McNeil is trying very hard to pretend that the backlash against gay people is somehow a result of the overturning of Roe, rather than a result of trans activists taking over and attempting to act as the voice of the entire LGBT+ community.
As far as I can tell, the LBG community is beginning to make efforts to divorce themselves from the T+ community. When the T+ community is demanding that lesbians allow transwomen with penises to rape them, promoting drag shows to children, and encouraging young children to want to mutilate their bodies, the LGB community has everything to lose by allowing trans activists to speak for them and very little to gain.
However the Trans group is so loud and intimidating that many gay people are just hesitant to speak out against their nonsense. Plenty of gay people do not agree with that agenda. I even know a trans woman that doesn’t agree with it! I just wish they would rally and speak out, as a group, because they’d have a lot of credibility if they did. It’s kind of like the doctors who are afraid to speak up about the ineffective covid management.
I've an old friend who constantly reminds me that "evil always overplays its hand." I don't want to get into the "evil" meme, but I can tell you this: everyone I know is well and truly exhausted by the Alphabet People, as they call them. Just exhausted.
And yet they have been brilliant and seizing levers of influence in society, infiltrating the schools and universities and driving out any opposition. It's going to be a long slog to get rid of them.
That's my experience, too. I have - I wouldn't say a lot, but certainly several - gay friends. We're in a conservative small southern town; everyone who knows them knows their persuasion and they don't care. We're all friends and nobody rubs anybody else's nose in his own personal orientation. It just doesn't come up. It's live and let live. But the aggressiveness, the haranguing, the attempts to secretly propagandize children - THAT is a deal breaker.
That's the difference. Most conservatives can get along with gays, even gay liberals. It comes down to our belief that we want to be left alone, so we're willing to grant the same to other people.
However, progressives have a much harder time getting along with conservatives, especially Christians. They believe that their policies are universally good, so the only reason to oppose them is evil, which must be crushed on general principle.
In this fight, the conservatives will keep losing until we start (rhetorically and legally) punching back.
It may go deeper than that. Christians, who believe in God and believe there is an ultimate moral standard direct from and answerable to God, stand as a rebuke to those who want no constraints, no rules, and no guilt on any actions they choose to take.
I agree most of this is caused by a running away from God that started in the Reformation, picked up speed in the Enlightenment, and really its stride with the 60's postmodernists. All 3 of these movements are increasingly "me" centered (MY concept of God, MY rights, MY sexual identity).
Clarence Thomas’s decision has nothing whatsoever to do with this of course. Medico-political mumbo jumbo written to deceive. What we have grown to expect from rags like the NYT.
The writer’s take on Thomas was a throw away to show his bona fides, KW. I agree with you that it was not necessary. Having said that, I do think Thomas wants gay marriage and contraception settled via legislation and leave the Constitution out of it.
Looking back on the recent history of the United States through the twentieth century - contraceptive and gay rights were certainly not afforded by either states’ or the federal gov’t - hence activists looking for constitutional relief.
If Clarence had his way (and not necessarily the rest of the conservative wing of the Court), in my opinion he would throw it all back to where governments failed to act.
Back to the future.
Agreed. I was willing to listen to this writer until this "after 50 years of progress, a serious backlash against gay rights is growing in this country: One need only read Clarence Thomas’s decision in Dobbs to get a sense."
The LGBT lobby just got finished with a 1 month celebration of their pride (historically a vice, not a virtue) in screwing their own sex. This bizarre festival was trumpeted by every media outlet. Corporate logos were festooned with rainbows to show solidarity. Most major cities in the world bedecked their major thoroughfares with the LGBTQIAXYZ flag. American embassies flew gay pride flags. For the month of June, sexual deviance and oddity of all kinds was heralded and celebrated by the entire edifice of Western culture. And whoa to he who questions the wisdom of this sacrament, for he shall be cast into outer darkness where there is weeping and gnashing of teeth (with all the bigots in Alabama or Kentucky or some other red state.)
Based on the last month (heck, based on the last 30 years), , where, exactly, is this "growing gay rights backlash"?
I'm not seeing a backlash, but I live a pretty cloistered life in a small town.
While I have a close friend, a devout Catholic, who takes the "screwing their own sex" point of view, I have known more than a few gay men - and, delight of delights - lesbian women too, and my POV has softened quite a bit.
One queer friend and I discuss the matter pretty frankly, and he told me, "Do you think I LIKED getting hell beat out of me at school? Getting laughed at? I got to where even I hated myself for being who I was, but the fact is, it WAS who I was. People say, 'Just stop being queer.' I know you're (Jim) not a believer - if you decided tomorrow to become one, would you genuinely believe? Of course not. It's not a decision under your control." Made me think.
I really dislike the "trans" stuff because I see it as truly a mental disorder, and you don't treat those with surgery - even if it will make you a champion "female" swimmer. Homosexuality, OTOH to my eye is a different beast. It has been with humanity since the dawn of time; as a non-reproductive persuasion, you'd think it would have been eliminated from the gene pool by now. That it has not gives me great pause; nature does not do things without a reason.
And now the bullied gay kid and his friends have taken power and is bullying anyone who refuses to celebrate his lifestyle.
If this was about respect and tolerance, I would be completely on board. But at the point that you're forcing florists to work your wedding, harassing bakers who don't want to bake cakes, getting people fired for contributing to Prop 8 in California, and sending people to re-education if they use the wrong pronouns... that's not about tolerance.
I want a liberal society. I want a society where Jewish families can go to synagogue without fear, Catholics don't have to worry about their churches being vandalized, and where 2 gay men can walk down the street holding hands without being harassed. I want a liberal society and am willing to "live and let live" a great deal to obtain it. But it doesn't appear that the Left wants this at all. They want a society where ideological non-conformity is punished severely. Forced to choose between an illiberal Left society that hates me and an illiberal Right society that doesn't hate me, I know which I would have to pick.
I think that's the point. Things were stable; now people who don't wish this nation well are using every weapon they have to cause dissention and hatred among groups who had been tolerating each other's peculiarities just fine. Division, disorder, and chaos are their weapons of choice. Oh yes, and violence. Lots of violence, tolerated and even encouraged by one political party.
I can assure you that my friend, the height of whose aggression was, upon helping my wife erect an electric dog fence, put his hands on his hips and proclaimed, "God, I feel SO butch!" is not in that group and does not want to be.
Your friend must be appalled at that which is being done in the name of his tribe today. I know several gay men who are as well.
I am a lawyer and although it's clear from Justice Thomas's Opinion that he firmly rejects any legal basis for the use of "substantive due process" in deciding cases (he thinks the concept is imaginary), he only mentions Obergefell along with other cases that did rely on substantive due process as one of many cases that may need to be re-examined in the future. I don't see how it's a fair call to state that Thomas is therefore showing animus towards homosexuals.
Sheryl, Thomas stated that same-sex marriage should be revisited.
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
And I don’t think it’s unreasonable to assume Thomas is a homophobe!
“has been a reliable vote against LGBTQ rights. He dissented from its pro-LGBTQ rulings in 1996’s Romer v. Evans, which struck down an antigay state constitutional amendment in Colorado; 2013’s Windsor v. U.S., which struck down the main part of the Defense of Marriage Act, and Hollingsworth v. Perry, which let stand a lower court ruling invalidating California’s Proposition 8, an anti-marriage equality ballot measure; and 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. In his dissent in Obergefell, he wrote, “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement” — marriage being that “entitlement.”
He joined in the court’s 2018 decision vacating the Colorado Civil Rights Commission’s finding that a baker illegally discriminated against a gay couple by refusing to create a wedding cake for them. However, he wanted the decision to go further and expressed concern about whether marriage equality could be used to stamp out freedom of speech and religion.”
https://www.advocate.com/news/2019/10/07/homophobic-justice-clarence-thomas-ill-may-miss-lgbtq-rights-cases
https://lawandcrime.com/supreme-court/justice-thomas-compares-number-of-abortions-to-civil-war-deaths-in-concurrence-identifying-other-landmark-cases-to-overturn-after-roe/
You missed Thomas's and Sheryl's point. Thomas said nothing about contraception, gay marriage, or sodomy. He said substantive due process is not an appropriate foundation to sustain those rights.
Getting to the answer the right way matters a great deal to Thomas. Some find it tedious. Those people tend to be much more tolerant of judicial overreach and fiat. Those people want their preferred result and don't much care how they get there.
DemonHunter, You say: “Getting to the answer the right way matters a great deal to Thomas. Clarence said: “…we should reconsider all of this Court’s substantive due process precedents…” Clarence Thomas mentions multiple “substantive due process.” decisions except this one: interracial marriage. I understand he is married to a white woman, is he not? Is this not a glaring inconsistency? How does one explain him bringing up gay marriage, but not his interracial marriage? So much for his integrity!
Not inconsistent. Interracial marriage has already been addressed through a variety of other methods and does not rely on substantive due process (sodomy, contraception, and same sex marriage rely on substantive due process). That's why he does not include it on his list.
edit: But it, interracial marriage, no longer requires substantive due process to justify its existence.
In the alternative, assuming no laws preventing racial discrimination exist (which of course they do) Thomas would argue that the Privileges and Immunities clause of the 14th would still support a prohibition on anti-miscegenation laws.
Demon, I call bullshit!
Loving v. Virginia, 388 U.S. 1 (1967) was the case in which the Court held that the Virginia anti-miscegenation laws violated the Due Process Clause of the Fourteenth Amendment. After assessing the case facts with “strict scrutiny”, the Court also held the laws violated the Equal Protection Clause of the Fourteenth Amendment. On July 11, 1958, Mildred and Richard Loving were apprehended in their homes in violation of Section 20-58 and 59, which were the anti-miscegenation laws that prohibited leaving the state to interracially marry and returning to the forum state as well as labeling this activity a felony. Mildred, a woman of color, and Richard, a Caucasian, both plead guilty, received one year in prison, but had their sentences mitigated on the condition that they not return to Virginia together for 25 years. Unaccepting of this cruel reprimand, the Lovings’ sought legal relief, an endeavor that lead their fate to be overturned by the SCOTUS. Relying on the federal and state obligations to honor each citizen their due process rights and equal protection under the 14th and 5th amendments and guiding public policy to recognize the sanctity of protecting the private life, the SCOTUS unanimously ruled the anti-miscegenation laws unconstitutional, a monumental decision that restored another political and social right for minorities (specifically blacks).
Call bullshit all you'd like. Interracial marriage does not have to rely on substantive due process to be protected. Loving did of course rely on it (and equal protection). Of course substantive due process exists. So does the right of equal protection. My point is that the outcome of Loving can be reached without relying on substantive due process. Because that it true it did not belong on Thomas's list.
Substantive due process has been a way for SCOTUS to enforce contentious social issues in an attempt to settle them. It hasn't worked with Roe obviously but I think gays right to marry is constitutional regardless. Our rights are as individuals not as members of a group. If individuals have a right to marry then likewise gays - they're 2 individuals each with that right.
KJMAC: No, it hasn't. Substantive due process enforces NON-contentious social issues. It applies to non-enumerated rights deeply embedded in our history and traditions which are necessary for ordered liberty.
Abortion cannot pass that test because it fails both prongs. Contraception, same-sex marriage, and sodomy also fail. None is a traditional, recognized, historical norm. This does not mean they should be prohibited. Thomas simply suggests that the privileges and immunities clause is the better authority for supporting them.
Interesting comment. Would you care to provide some examples of these "non-enumerated rights deeply embedded" but that are protected by "substantive DP"??
Probably the most controversial is privacy. Not privacy itself because several Bill of Rights protections implicate such a right (search and seizure for example). The controversy is when it is expanded. Justice William O. Douglas, who once found a tree had standing to sue in a court of law, argued that the Bill of Rights casts penumbras (shadows). Emanating from those shadows are non-enumerated rights such a right to contraception, right to an abortion, etc.
Other rights that pass the substantive due process test mentioned above include things like the right to marry, right to have children (which is also argued negatively, the right not to have children).
Thomas objects to this doctrine of substantive due process for two reasons. First, he objects to the court creating non-enumerated rights that legislatures or the amendment process can achieve. He believes in the machinery of the democratic process, he recognizes sometimes the process will fail or produce bad results. He simply believes, imo correctly, that the Court is just as fallible but those decisions are much more likely to linger and fester.... see for example... Roe. Second, he thinks that the original intent of the privileges and immunities clause is the more appropriate foundation to support these rights currently based on substantive due process. P&I basically stand for equal protection. Originally, in Art. 4 of the constitution it worked the prohibit states from discriminating against citizens of other states. (Hmmm... CA bans state travel to MT?) The 14th created national citizenship. Art. 4 protected against "intra-state" discrimination but not "inter-state" discrimination. The 14th wiped out that distinction. It's been a long time since I studied this so I've probably erred in some of the above but the broad strokes I think are reasonably accurate. If not I'm sure I'll be corrected 😉
Now you are gonna make me go back and review P%& jurisprudence! Thanks (I mean that sincerely).
My condolences 😉
I agree that there are other legal ways to approach a right to gay marriage besides substantive due process. But it's like abortion in that there is still no easy way to craft a "solution" that fits completely.
I see marriage as an organic human institution based on family formation through procreation, that doesn't translate perfectly to the general idea that any two people can be married. I do want to see all 50 states support gay marriage even if not based on the Federal Constitution.
I think the ban on gay marriage was a blue law based on religious discrimination common in the past but not compatible with the concept of equal rights. It treats a person differently based on others’ opinion of that person. I see it as analogous to racial discrimination.
I can make a pretty strong case based on Plato or Aristotle opposing gay marriage. The idea that the only reason is religious animus is pretty absurd.
Here's a shot: The first goal of any society is to produce, raise, and acculturate the next generation to be capable of doing the same. Does treating same sex relationships the same as hetero-sexual relationships help achieve that goal? In an Aristotelean sense, does it promote the common good?
While I can see many ways that legally recognizing and subsidizing gay "marriages" promotes individual happiness (which is a good), I think it's very hard to make the claim that it is in the common good. And considering that we now have 25% of college girls self-identifying as LGBT, it should be pretty clear that such policies have had very nasty side affects that directly harm that "produce the next generation" goal.
I’d say yes, same sex couples can produce and raise the next generation. I think I saw on this very blog that Bari and Nellie are due to be parents soon.
I trust it's obvious that a same sex couple cannot "produce" the next generation without extraordinary (in the literal sense of "other than ordinary") methods.
The question from a policy matter is whether such relationships deserve the imprimatur or the state. State approval and subsidy (and that's what legal marriage is) is generally based on something advancing the "common good" in some way. As I said above, I do not see how same sex marriage does that, and the current woke LGBT insanity is clearly extremely damaging to the common good. I know many here want to separate those two, but both are rooted in the same philosophy ("you can't regulate what I do with my body") of maximal individual autonomy.
I understand this is a touchy subject in light of our hostesses here; hostesses who I have come to (unexpectedly) respect a great deal. But the original commenter said that the ONLY reason to oppose redefining marriage was religious bigotry. This is demonstrably not true. I would want Bari and Nellie to be able to live the life they want free of discrimination or hatred. However, that doesn't mean I support pretending that their relationship is ethically, legally, or morally identical to a heterosexual married couple. It is not. How is being forced to pretend that two women can be married to each other any different than being forced to pretend that women can have penises or men can get pregnant? (And please don't say that someone else's gay marriage will never affect me. Ask Jack Philips or Barronelle Stutzman about that theory.)
I don't see a marriage contract as being primarily to advance some common good I didn't get married for society, I got married for myself. Legal marriage is about the same things as any legal contract plus provisions regarding children.
Hetero couples can marry without the demand that they reproduce, people can reproduce without getting married, and a same sex couple who are fertile can reproduce. There are hetero people who use sperm banks and surrogates - especially in Hollywood, from what I hear.
I see no comparison with same sex marriage to trans. My problem with trans is that it is using govt to control speech and basic rights for others. Losing one's job for mispronouning someone is not something we even heard of a few years ago. But gay people have always been around.
As long as adults want to trans themselves through whatever surgeries or chemicals they want I don't care. It's their business.
But I think it's gotten extremely out of control extremely quickly and I don't think we're being bludgeoned with transness because everyone cares so much about trans people. I think it's being used to disorient people and destabilize society.
Agreed. I got married for the same reasons. But marriage is not just a "contract". We privilege marriage in countless ways small and large, beginning with the tax code. Demoting the oldest human institution in the world to "the same thing as any legal contract" kind of misses the point. It's not "a legal contract plus children"; the production of children has been the point of marriage in essentially every major human society that has ever existed. There is no "demand" that you reproduce, but reproduction (produce and raise the next generation) IS the historical reason we privilege the marital relationship so extensively. Might modern technology change that? Absolutely. But unless you're milling to embrace Huxley, I would be somewhat wary.
You seem very uncomfortable with the idea of "the common good", especially that government might actually seek to deploy its power in pursuit of it. Liberals (and libertarians) in the tradition of J.S. Mill often have difficulty with this. However society is a group of people who share a set of values, norms, myths, and ideas -- in short, they share a definition of "the good". Society cannot be, as Mill suggested, "I have the right to do whatever I want until your nose begins", because 1) the conflicts between rights and noses will multiply geometrically and 2) all other social norms and values must collapse against this definition. In other words, Mill style liberalism (which gay marriage, trans rights, "my body my choice" are all based) ends up dissolving any society that embraces it. I'm sorry for giving such a big answer to a specific question, but most political debates are really philosophical disagreements.
Patrick Deenen wrote a book on this called Why Liberalism Failed. It's very good and explains the problem far better than I can in a brief comment.
I’m not uncomfortable with a common good, I just think it should include gay marriage
You can see analogies all you want. Anyone can do that 4th grader analysis. The 13th, 14th, and 15th Amendments were adopted after the Civil Way - which was about slavery (notwithstanding that the slave states thought it was "states' rights - yeah, rights to have slaves). The purpose of those amendments was to bar slavery (though it could still be OK for prisoners - read the 13th!), citizenship of born and naturalized persons (but no Indians until 1924), and the right to vote - for people of color or former slaves - no mention of homosexuality here). Those Civil War Amendment have little to do with all the expansion of "rights' the Supreme Court came up with under the Equal Protection banner. It is inventing rights out of whole cloth.
It may be on the basis of the 9th amendment.
See my comment somewhere else in this thread (I do not know how to link it in Substack). I addressed the 9th. All the 9th says is the just because a right is not enumerated in the US Constitution, that does not mean it doesn't exist - that determination, per the 9th, is for the People. The 9th says nothing about the actual existence of any right and for certain says nothing about any such unenumerated right being protected by the US Constitution.
OK, I will write this only once and hope you get it:
The issue is not whether you as an individual have any particular “right” but whether the US Constitution protects such right from being interfered with.
Pretty easy to understand though an amazing number of folks just don’t get it.
I ‘don’t get’ your comment. Are you saying the constitution protects a right for some but not others?
I guess you consider yourself the smartest guy in the room. Thanks for making me 😊
I am "saying" that the US Constitution protects as a US Constitutional right only those things - rights - that are stated in the Constitution. First Amendment rights - freedom from the government interfering with speech, religious affiliation and expression, press. Second Amendment - freedom from government interference with citizens bearing arms. 3rd Amendment - government may not quarter soldiers in citizens' homes. 4th - freedom from the government conducting searches and seizures. Etc. Etc. Etc.
In other words, unless a "right" is "enumerated" in the US Constitution, such right, while it may still exist, is not a US Constitutional right. Maybe a state statute or constitution protects such rights, but not the US Constitution. The US Constitution did not purport to determine all rights or to exclude "rights" in fact it specifically stated in the 9th Amendment that things not enumerated in US Constitution may still exist, but they are for the People (not Supreme Court Justices) to decide.
The way to understand this is to get your mind wrapped around the circumstances of the Colonies at the time of the Declaration of Independence -- you know, breaking away the lord and master known as the King of England, aristocracy and all that European crap. Tyranny of the King, not decision of the people.
So the US Constitution is written in a manner of providing negative rights, not, with a few exceptions, positive rights. The Constitution lays out the form of government the colonies will have once united, the powers and authorities the parts of government will have. That is the powers of the legislature, the courts, the executive - in each case of the federal government. That is the basis for each of the colonies accepting this form of government and Constitution and ratifying it.
Unless the US Constitution explicitly protects something, it is not a US Constitutionally protected right. You might still have such a right, but you need to look elsewhere for protection - state law, etc.
Is it conceivable that a gay couple could be authorized to marry under a state constitution? Of course. Under state law? Of course. Under the US Constitution? That was what Thomas was writing about. That the idea of "substantive due process" was invented (in the 1930s and really came into force in the 1950s and thereafter) and is not part of the US Constitution when written and not - other than by consulting a Ouija board - part of our form of republican government seems lost on folks.
And on your question of gay marriage, it is pretty much beyond dispute that homosexuality was a crime and homosexuals could not be married in any state in a sanctioned fashion at the time of the US Constitution. That was the frame of reference when the US Constitution was ratified. If you think that was the result merely of religious bigotry you need to do lots of reading on the history of human society. That we may think it acceptable today is beside the point of the US Constitution. That many do accept it is simply a basis for states to legalize it - as many have.
Get it? "Substantive Due Process" is a theory that is not found in the US Constitution itself (other than using a Ouija board to mush together the due process clause of the 4th and the equal protection clause of the 14th amendments) but indeed was used by many Supreme Court decisions - ones that strayed from the text of the Constitution but that fed the "feelings" of fairness of the then sitting Justices - it is not in the Constitution itself.
You may not like this; you may disagree with it. If so you are simply part of the debate on interpretation. If you think that Supreme Court Justices should sit as an ultimate decider of conflicting social theories and pressures, you have given that Court way too much power. You have divested the People of their right to decide what sort of society that will have. You will not like where it might lead to.
I would love a link to this so I could share; truly excellent comment
You could simply copy and paste. But be careful, there is another view.
I happen to believe that the notion of the federal government being a government with limited powers is what the Founders intended. It was why 13 independent and self ruling Colonies agreed to live within a national government framework. I do not believe the subsequent amendments, post-ratification, changed that concept. That leads to the idea that the Constitution is one of negative rights - things the federal government may not do to citizens.
Others view the concept of negative rights and a limited federal government as being somewhat undone by the 14th Amendment and now permitting "positive rights", things like what "substantive due process" permits (in their view). This comes out of a view that the due process clause to the 14th amendment as well as the equal protection clause of the 14th together with the the 5th Amendment's guarantee of "due process” now changes the relationship between the federal government and the citizens of the country for many purposes..
Equal protection is what the federal courts usually use to create "rights", the state of play at the original ratification be damned. What substantive due process ends up doing is permitting the unelected Justices sitting with lifetime appointments, to act as the supreme judge of morality and social order. No democracy, neither direct nor representative necessary!
The 13th, 14th, and 15th amendments were enacted in the wake of the Civil War. Historians of the Constitution actually call them the Civil War Amendments. They were addressing slavery, the cause of the War, and changing that aspect of the original Constitution to rid it of slavery and to assure that former slave states would treat freed slaves (whether born in the US or not - some were recent captures from Africa) and their descendants as they treat all other citizens. The South reacted poorly, despite having lost the War. Poll taxes, separate schools, and debtor prisons essentially recreated a slave-like state. Jim Crow, Segregation, etc., resulted from this bad faith conduct by the South - and some fellow travelers in the North. So the losers actually prevailed on the precise thing the War was fought over. In took the Civil Rights Acts of the 20th Century to fix that.
All that is a long winded way of saying the 14th Amendment was directed at the citizenship rights of former slaves. It was not a gaping hole in the Constitution by which the Supreme court could find penumbras and emanations.
Others disagree with me on this history and interpretation, so be ready for pushback.
Thank you. I’m sure there is another side(s) but this is all very enlightening and informative.
If you'd really like to dig into SDP?, here is noted academic Erwin Chemerinsky's piece on it. He is decidedly from the opposite perspective. This is good, if still wrong. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1638&context=faculty_scholarship . Yhat said, this is pretty in the weeds.
Thank you. I will read it, and try to learn something and understand all this. I spoke to my friend who went to law school about this yesterday. She said substantive due process rights supposedly emanate from "penumbras." And Supreme Court invented penumbras by mashing 4th and 14th amendment--and boom! She said: "even back then I learned quickly that it was unpopular to question the validity of penumbras so I just kept my mouth shut!."
I really appreciate your lengthy and lucid explanation. I didn’t fully understand it before, and the majority of the public definitely doesn’t get it. This should be an educational oped every newspaper in the country. Sadly it won’t be.
I thought you were only going to say it once.
I elaborated in the hope - however misguided that hope was - that you might learn in the effort.
Likewise.
I appreciate the clarity and intelligence with which you set forth this explanation. Not many “got” this before, and I certainly hope at least a few will “get” this after reading. I am saving your answer to share with those with whom I correspond who do not “get” it yet. I’ll give Running Burning Man credit, of course. Never give up hope.
No need to credit me. Many wise folks before me came up with the theories. I learned the theories of "substantive" versus "procedural" due process 40 years ago in law school. I did extremely well in law school (not trying to brag on myself) and understood this intellectually at the time. Didn't really understand it - at least not viscerally - until years later.
This is an active debate today as it has been for decades about whether SDP really should be or whether is it made up a framework for Constitutional analysis - of which penumbras and emanations is are bastard offsprings thereof.
You can probably tell where I come out on this analytical method, but where I stand on actual rights (gay marriage, abortion, etc.) in the entire scheme of things could surprise you.
Where I stand on gay marriage and abortion surprises many in my conversation circle who are aware of my opposition to Roe, etc. I support legislated decisions, and personally support abortion through 15 weeks, with emergency exceptions. As to “same sex marriage” I believe government should stick to enforcing “civil union” contracts, and leave the sacrament of marriage to churches. I wouldn’t be surprised at all if you held similar views.
McNeil's single line about the Dobbs concurrence is an unfortunate distraction in an otherwise well-written and informative piece. It was completely unnecessary, didn't even make the point it was trying to make, and showed that McNeil did not understand what Thomas was saying in his concurrence (or that Thomas has been making those points in solo concurrences or dissents for about 20 years now).
Apologies but I cannot regard this as an informative piece. Well-written, yes, the writer is skillful, but.... These lines earlier are a dead giveaway among others: "I blame several factors: shortages of vaccines and tests". Really, after Covid, and the real abiding concerns about vaccines and tests? There are other more complete and accurate pieces on Monkey Pox free of the amateur and fear mongering aspects of this.
Very well put. it could've been written:
1) there is a virus that originated in Africa called Monkeypox, even though it has a rodent vector.
2) it is related to smallpox, but far, far less dangerous. There is no measurable mortality, and the primary complaint is localized lesion pain
3) it spreads by contact, and so associated with sexual activity that is should properly be referred to as a STD.
4) The affected groups are all well-aware of the pathogen, how it spreads, and what can be done about it.
5) There is no need for the general public to become concerned.
Not exactly what the self-interested Mr. McNeil wrote, is it?
Good catch, particularly the "shortage of tests." Really? How would you test for Monkeypox BEFORE there is any physical evidence? Test the entire population? Set up road blocks?
Once the postules erupt why test? The physical evidence would be conclusive.
As far as vaccines go, if there is no immediate need to vaccinate for a particular disease why would any sane government go to the expense to stockpile massive doses of vaccine?
It’s another scam maybe the Dems want a lockdown again especially in the BG states
McNeil probably harbors hopes of his cocktail parties returning. It's a shame but he is overall a credible science reporter, and this is really the first monkeypox article I've taken remotely seriously. I have just assumed the MSM ones are basically pharma-funded psyops.
That wasn't the impression I got from his article. He had to throw in his bonafide liberal card by slurring Justice Thomas. It if hadn't been Thomas it would have been Trump. It's a mindset.
I call it out when I see it but I also realize where it comes from. It is so intrinsically wired into his being that he can't help himself. If Bari is editing she won't notice it either because her inclination goes that way too.
We have to call it out but we also have to be gentle about it.
Mr. McNeil is nearly a man without a country. He lost his prestigious position at the NYT. We need to overlook some of his innate prejudices.
Naomi, when Donald wrote, “One need only read Clarence Thomas’s decision in Dobbs…” Justice Thomas was basically saying the court should consider looking into same-sex marriage!
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
https://lawandcrime.com/supreme-court/justice-thomas-compares-number-of-abortions-to-civil-war-deaths-in-concurrence-identifying-other-landmark-cases-to-overturn-after-roe/
"He had to throw in his bonafide liberal card by slurring Justice Thomas. It if hadn't been Thomas it would have been Trump. It's a mindset."
Absolutely. I call it "Trump Tourette's Syndrome."
More like Derangement Syndrome
We all have short memories. Remember "Bush Derangement Syndrome?" The Left became hysterical and nearly apoplectic about George W. Bush.
Ah yes, those halcyon days when it was perfectly acceptable at all levels of society and media to relentlessly call a sitting President a complete idiot, the new Hitler, and a chimpanzee.
Ah, yes, but ONLY if that president was a Republican, mild mannered and never responded back.
I mean, the Democrats are still the only party to have one of their presidents accused of being a secret Kenyan hiding behind a forged birth certificate.
Birtherism was the original PeeGate.
I remember it well. I knew people who would practically foam at the mouth at the mention of W.
Actually I was one of those. Well not foaming maybe, but the Iraq 'Weapons of Mass Destruction' war is a blight on the Bush family and the Cheneys.
I would say it's more about hoping some lefties will take the rest of his piece seriously as long as he meets his Orange Man Bad quota (or in this case, Clarence Thomas).
It's political in-group signaling to try to avoid being written off as a "right wing post" by people who like their echo chambers good and airtight.
Thanks for calling it what it was. Maybe it’s just splitting hairs but it annoys me that MSM keeps calling it “Thomas’s decision”. Alito wrote the majority opinion and Thomas just wrote a concurrence.
Yes, exactly. It was a gratuitous slur.
It's amusing how these liberal/Lefties manage to always inject a sling/slur/hit against their favorite righty trope. It's either Donald Trump or Clarence Thomas.
Wow, I'm a pretty online person but I didn't see this take coming. I even scrolled back up to make sure I hadn't accidently entered the comment section to a different article. Oh well, just came to say thanks for the info Mr. McNeil. As for KW Norton...wow...
I would appreciate, if not a verbatim quote of Thomas' decision, at least a link to it or a capsule summary. The oblique reference without explanation leaves an impression that I suspect is not honest or accurate.
Dobbs Thomas Concurrence.... there are your search terms. Its all of about ten pages long. Knock yourself out.
Your suspicion is well grounded...
I read the decision on the link below. As I read it (disclaimer: I’m an engineer, not a lawyer), Justice Thomas does argue that any court decisions, like gat marriage, substantively based on the 14th Amendment) could (I read “should”) be revisited.
https://www.documentcloud.org/documents/22067323-dobbs-v-jackson-womens-health-organization-clarence-thomas-concurrence
Dobbs was about the baby, there are no innocent victims in gay marriage or any of the other issues Thomas refers to. It is the human being killed in utero that makes abortion a unique problem of conflict between right to choose, privacy and another right to life.
Here's a quote from the Dobbs opinion:
But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe
Slip at 71
And then Justice Thomas says:
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
Yes, Thomas rejects substantive due process and has for pretty much his entire career. Don't confuse that with the notion that he supports prohibiting contraception et al.
In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967),
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701
If he said "could," why did you read "should"?
Thomas, Thomas did indeed use the word should!
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
https://lawandcrime.com/supreme-court/justice-thomas-compares-number-of-abortions-to-civil-war-deaths-in-concurrence-identifying-other-landmark-cases-to-overturn-after-roe/
I think that's a fair reading of Thomas' opinion. However, it should be noted that there are probably eight justices opposed to that, four said so in their Dobbs opinions, I assume the three Dobbs dissenters would also be opposed and the chief justice wouldn't want to deal with such a controversial issue. Much of the media has tried to stir up panic over this, both to get clicks and to promote pro-abortion activism. I think the chance of gay rights, gay marriage or interracial marriage being banned is negligible.
I don't think that's what Thomas meant. I think he was pointing out that many of these "rights" we now take for granted are based on some of the same flimsy legal reasoning that Roe was, and that it would be better not to assume that those "rights" are on solid ground.
Exactly. And Obergfell is one of those decisions. Like Roe, if overturned, state legislatures could easily permit same-sex marriage via statute. Thomas is trying to make the Constitution and constitutional jurisprudence make sense. That's all. He's not anti-gay.
Yes, from what I read Thomas wasn't arguing that gay marriage should be revisited to be made illegal again, he was pointing out that Obergefell's reliance on the Fourteenth Amendment and the made-up judicial doctrine of "substantive due process" is flimsy Constitutional grounding, whereas a stronger argument might be made from elsewhere, like from the "privileges and immunities clause."
Leah, Thomas did indeed state that same-sex marriage should be revisited.
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
And I don’t think it’s unreasonable to assume Thomas is a homophobe!
“has been a reliable vote against LGBTQ rights. He dissented from its pro-LGBTQ rulings in 1996’s Romer v. Evans, which struck down an antigay state constitutional amendment in Colorado; 2013’s Windsor v. U.S., which struck down the main part of the Defense of Marriage Act, and Hollingsworth v. Perry, which let stand a lower court ruling invalidating California’s Proposition 8, an anti-marriage equality ballot measure; and 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. In his dissent in Obergefell, he wrote, “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement” — marriage being that “entitlement.”
He joined in the court’s 2018 decision vacating the Colorado Civil Rights Commission’s finding that a baker illegally discriminated against a gay couple by refusing to create a wedding cake for them. However, he wanted the decision to go further and expressed concern about whether marriage equality could be used to stamp out freedom of speech and religion.”
https://www.advocate.com/news/2019/10/07/homophobic-justice-clarence-thomas-ill-may-miss-lgbtq-rights-cases
https://lawandcrime.com/supreme-court/justice-thomas-compares-number-of-abortions-to-civil-war-deaths-in-concurrence-identifying-other-landmark-cases-to-overturn-after-roe/
Well, you pretty much blew your entire arguments with those quotes, smartypants. All anyone needs to do is read them to know that Thomas is concerned only with jurisprudence, and has zero interest in the sexual and gender issues that so obsess you.
Gordon, how did you derive my comment was about: “…sexual and gender issues that so obsess you.”?
I think you misread my comment. I didn't say he didn't want to revisit it, but that his reason for wanting to revisit it is because he objects to the grounding for the decision, namely the judicially constructed doctrine of "substantive due process." He believes the legal theory underpinning it is Constitutionally void and wants to see all the decisions that relied on it overturned and re-decided on more direct and valid Constitutional grounds. I have no idea what his personal views on homosexuality and gay marriage are, but he has been very consistent in his strict constructionist approach to Constitutional questions and legal theory.
Leah, I stand corrected. You say Thomas “…has been very consistent in his strict constructionist approach to Constitutional questions and legal theory.”, His inconsistency screamed out loudly when applying “substantive due process.” when it comes to interracial marriage. How does one explain him bringing up gay marriage but not his interracial marriage? So much for his integrity!
“In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967),”
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701
I guess you and I have a different definition of hypocrisy. Along with Obergefell, he cited Griswold as a decision that needs revisiting (again, because he objects to "substantive due process" as a legitimate Constitutional grounding), which says to me that he would be willing to risk his own, very personal stake in the outcome for the sake of maintaining a strict constructionist approach to jurisprudence. I think you could only claim inconsistency on his part if he had exempted Griswold from the list of "substantive due process" decisions needing a Constitutional reframing.
In Griswold v. Connecticut, the court ruled about privacy within a marriage. In Loving v. Virginia, the court ruled about who you could marry: hopefully, you can see the distinction?
Hint---don't argue with stupid. Stupid=Just Me. It'll be a maddening circular experience.
Sure. I'm a big fan of Justice Brandeis, who said that it is sometimes more important that a thing be DECIDED than it be decided RIGHT. Having said that, though, for certain Roe v. Wade should have been revisited because its effects reached far into the future and tainted the Court. It wasn't just a decided case, then over. A terrible precedent.
I understand Justice Thomas' desire to get things right all down the line, but am not sure whether revisiting other decisions is the best thing. As Johnny 5 said, "Need input."
That’s because those cases are not within the purview of the court to be decided.
“Gay” not “gat”, obviously.
Gat it. I mean got it. Ha ha. We all do that.
🙏
Why don’t you research it yourself? In the aftermath of the Dobbs decision there was hysteria about how Thomas had written something about how other prior SCOTUS decisions were poorly reasoned as was Roe. But in the Dobbs decision it was stated that the decision didn’t extrapolate.
So the MSM of course claimed, They’re coming for gay marriage next!!
NCMaureen why do you think it’s illogical to extrapolate, “They’re coming for gay marriage next!” When Justice Thomas says: “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sexual acts], and Obergefell [same-sex marriage].”
just Me it sucks so bad here I will buy you a first class ticket to any workers paradise you choose . What say you? You want Russia , China or North Korea , you would be so happy there no complaints
Jerry, I’m confident that our forefathers who penned the Constitution of the United States decided that when they were writing it, the First Amendment meant: no badmouthing the government, particularly the Supreme Court. I mean, what other explanation could there be for your comment?
no what i'm saying if things are so bad for you here I'm giving you a ticket out to some workers paradise where you will be happy , no Thomas no Trump just dicktaters , your kind of people . No one to blame for your failures there
@Just me: Just like abortion was not made illegal by Dobbs; it was simply sent back to the states to decide, Thomas opines that same-sex marriage should also be decided by the states. It is existentially important for liberty and the Constitution that powers that do not belong to the federal government should be wrested away from Washington and restored to the states.
Jan, by taking away a right that was guaranteed by the federal government, essentially makes it illegal in other jurisdictions. You can play the silly word game if you like, but essentially it is taking a right away: for the first time in America’s history!
Two things: 1. Rights are not gifts from government. Rights precede it and can neither be granted nor taken away by government. Even the late RBG admitted that the Roe v Wade decision was not properly derived from the Constitution. By contrast, the Bill of Rights was not just dreamed up by some justices. Those rights were established by amending the Constitution. 2. The Constitution is not a silly word game. The 10th Amendment reinforces that the federal government is supposed to have limited powers: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Consequently, California, New York, or any other state whose legislature so decides, can codify abortion rights in any way it wants. New York codified abortion rights three years before Roe v Wade and will continue to allow it after it has been struck down, https://www.ny.gov/programs/abortion-new-york-state-know-your-rights
Jan, balderdash, “Rights are not gifts from government. Rights precede it and can neither be granted nor taken away by government.” Right within the declaration of independence says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights," that among these are Life, Liberty and the pursuit of Happiness. When the government executes an individual, are they not taking away their: life liberty and the Possibility of pursuing happiness? So, you see, Jan, the government can indeed take away rights!
Thank you for clarifying my point better than I could. For the political game called the United States of America, the Declaration of Independence is the spirit of the game, while the Constitution can be understood as the rules of the game.
From the Declaration, you highlighted the phrase "all men are endowed by their Creator with certain unalienable Rights..." Notice two concepts that make my point:
1. Creator. 2. Unalienable Rights. Creator refers to God (or if that is too unpalatable, Natural Law), not government, as the origin of our rights. Therefore the conclusion: Rights are not gifts from government.
Unalienable rights are rights that cannot be taken away from the people. If unalienable rights are simply taken away, then the rules of the game have been broken. If the rules have been broken, free-born men and women must reclaim those rights by any and all means necessary. If our rights are stripped away by the process of amending the Constitution, then the spirit of the game called the United States of America has been extinguished.
Your point that executions are proof that government can take away rights doesn't work. When a court-ordered execution occurs, it is done because that person broke the rules of the game, ie is a criminal who has violated the rights of others. Because government exists to protect our rights, it must punish those who violate the rights of others. By contrast, the logical conclusion of your argument would be that government would remove the rights of all people when one person breaks the rules.
Jan, here are the facts, at the beginning of the year, a person had a constitutional right to get an abortion in all the states of the United States of America. That constitutional right was made null and void by the Supreme Court, so for the first time in the history of America, a right was taken away.
Is that so? Where in the Constitution would I have found this right? Or is it perhaps in one of the amendments? It's not. It's only found in a poorly argued opinion. So rather than a constitutional right, it was a court order that was an end-run around the legislative process. Now that decision is back where it belongs, in the state legislatures. Abortion will continue to be legal in 24 states.
Because Thomas is just one justice. No other justice agreed with him.
That predisposes the other conservative justices won’t agree with him; that’s a bridge too far!
It would take cases brought before the court, have any been brought on gay marriage or contraception?
Thomas just signaled to every homophobe in America that he would like to hear a case and is asking them, please bring one forward.
Just me: Reread the quote. Thomas's issue is the theory substantive due process, not contraception et al.
Interracial marriage is based on “…the theory substantive due process,…”.
In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967),
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701
But it no longer requires substantive due process to justify its existence.
In the alternative, assuming no laws preventing racial discrimination exist (which of course they do) Thomas would argue that the Privileges and Immunities clause of the 14th would still support a prohibition on anti-miscegenation laws.
Bullshit.
At the end of the day you are missing the point either willingly or by being impervious to reason.
Thomas is arguing that the doctrine of substantive due process is messy and flawed.
He is not arguing that we should criminalize contraception (et al).
You are of course free to believe what you’d like but clinging to fever dream scare tactics from politically motivated sources is not going to lead you to water.
meh
I did. There still should have been a link to it.
By the time we get to the cowardly tarring of Thomas’s decision without a link we are already feeling so serially abused as readers by having taken any of his fear mongering seriously we just shrug and note the source.
Tarring a black justice? Hmmm …
Same here lol!
It’s a good word when we use it accurately. Has historic significance.
Why was my comment removed?
Did you save a copy of it? I'd like to read it.
This is what I wrote. Not sure why someone had enough of a problem with it to demand it be deleted.
I think McNeil is trying very hard to pretend that the backlash against gay people is somehow a result of the overturning of Roe, rather than a result of trans activists taking over and attempting to act as the voice of the entire LGBT+ community.
As far as I can tell, the LBG community is beginning to make efforts to divorce themselves from the T+ community. When the T+ community is demanding that lesbians allow transwomen with penises to rape them, promoting drag shows to children, and encouraging young children to want to mutilate their bodies, the LGB community has everything to lose by allowing trans activists to speak for them and very little to gain.
Don’t know if you read that Taibi story about the California prisons, it was horrifying.
However the Trans group is so loud and intimidating that many gay people are just hesitant to speak out against their nonsense. Plenty of gay people do not agree with that agenda. I even know a trans woman that doesn’t agree with it! I just wish they would rally and speak out, as a group, because they’d have a lot of credibility if they did. It’s kind of like the doctors who are afraid to speak up about the ineffective covid management.
It is difficult to stand up to bullies. But we need to do it, lest the consequences of remaining silent become infinitely worse.
Exactly, as Dr Martin Luther King put it;
“The End is when we remember not the voice of our enemies but the silence of our friends”
I've an old friend who constantly reminds me that "evil always overplays its hand." I don't want to get into the "evil" meme, but I can tell you this: everyone I know is well and truly exhausted by the Alphabet People, as they call them. Just exhausted.
And yet they have been brilliant and seizing levers of influence in society, infiltrating the schools and universities and driving out any opposition. It's going to be a long slog to get rid of them.
Exhaustion yes but would you call it a backlash? I wouldn't.
That's my experience, too. I have - I wouldn't say a lot, but certainly several - gay friends. We're in a conservative small southern town; everyone who knows them knows their persuasion and they don't care. We're all friends and nobody rubs anybody else's nose in his own personal orientation. It just doesn't come up. It's live and let live. But the aggressiveness, the haranguing, the attempts to secretly propagandize children - THAT is a deal breaker.
That's the difference. Most conservatives can get along with gays, even gay liberals. It comes down to our belief that we want to be left alone, so we're willing to grant the same to other people.
However, progressives have a much harder time getting along with conservatives, especially Christians. They believe that their policies are universally good, so the only reason to oppose them is evil, which must be crushed on general principle.
In this fight, the conservatives will keep losing until we start (rhetorically and legally) punching back.
It may go deeper than that. Christians, who believe in God and believe there is an ultimate moral standard direct from and answerable to God, stand as a rebuke to those who want no constraints, no rules, and no guilt on any actions they choose to take.
I agree most of this is caused by a running away from God that started in the Reformation, picked up speed in the Enlightenment, and really its stride with the 60's postmodernists. All 3 of these movements are increasingly "me" centered (MY concept of God, MY rights, MY sexual identity).
You're channeling Dr. McGilchrist, aren't Ya, Sir Brian. :-)
You know me... the adopted intellectual stepchild of Rod Dreher, Iain McGilchrist, Alasdair Macintyre, Wendel Berry, and Paul Kingsnorth.
That's some lineup, Sir Brian.
Our Founding Fathers thought our system of government could only work with a citizenry grounded in the morality and ethics of the Bible.
Yup.
Going after the children is a bridge too far.