Is Gay Marriage Safe (From Clarence Thomas?) How Overturning Roe Could Dismantle Obergefell

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Aug 20

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On June 26th, 2015, the day the Supreme Court legalized same-sex marriage with a historic ruling in Obergefell v. Hodges, I was elbow deep in photos of dead people.

I was at the Cobb County District Attorney’s office – the congressional district that gave us American treasure Newt Gingrich – and the fact that I was there to appeal a death penalty case made me the devil incarnate, or at least a very close relative. When my friends texted me the news and rainbows started shooting out of my phone, I raced from my chair to stand beneath the lobby television, where I watched the ruling unfold on the news – Fox News, that is. A passing Assistant D.A. in a gun-metal suit glanced at the TV, grimaced, and spat “Jesus fucking Christ” as he headed out the door. Concerned I’d be asked to leave the office if I started doing celebration heel-kicks, I looked on in silence, tears streaming down my face, watching the moral arc of the universe as it bent towards justice. While the wall-eyed receptionist glared at me suspiciously, daring me to cheer so she could kick the devil out of her lobby, I had the delicious feeling that it didn’t matter. She was on the wrong side of history. We were safe.

Fast forward four years, and it doesn’t quite feel like that anymore. The arc of the moral universe may still be bending towards justice, but damn if we aren’t taking a frightening detour along the way. As we watch the current administration furiously dismantle as much of the progressive agenda as they can get their hands on, I have found myself wondering: is gay marriage safe?

Many argue that it is. After all, the advances made by gay rights activists in the past fifty years have fanned out far past the ruling in Obergefell v. Hodges. If you’re old enough to remember Ellen DeGeneres coming out on the cover of Time Magazine in 1997, you’re old enough to marvel at the strides the queer community has made since anyone’s coming-out was big enough news to warrant a magazine cover. We’ve come a long way, baby: a recent article in The Atlantic smoothly assured us, “The Struggle for Gay Rights is Over”. President Trump has shown little appetite for attacking Obergefell, calling it “settled law”; last month he even referred to Democratic presidential candidate Pete Buttigieg’s marriage to husband Chasten as “just great”.

And while conservatives may still be butt-hurt that they lost the battle against same-sex marriage, they’ve not done much better with the war: a full 60% of Americans now support the right of gays to marry, a flip from 2004, when 60% opposed. By and large, the country has come to terms with same-sex marriage with rather little opprobrium. When Obergefell was decided, many saw it not as a door opening to include queer people into mainstream society, but as a door shut against the bigotry they had previously endured. Less of a beginning, in other words, than of an end.

Ah, there but for the grace of Clarence Thomas go I.

That’s right, Justice Clarence J. Thomas, Chief Originalist – famously mute in oral argument, alarmingly voluble in opinions, crusader against interpreting the Constitution as anything other than a papyrus Old Testament of the State, hand-written by a dozen men prancing around in wigs who thought every sperm contained a tiny shriveled human waiting to grow – has long dreamed of an America where the only rights we have are ones we pay for. Since his appointment to the bench in 1991, Justice Thomas has moseyed so far from the mainstream that fellow Originalist Justice Scalia once distinguished himself from his colleague by joking, “I’m an Originalist, but I’m not a nut.”

For two decades, Justice Thomas had seemed content in his contrarian role, often issuing concurring opinions and dissents signed by himself alone, the legal arguments so draconian no one else dared add their name. On the subjects of capital punishment, entitlement benefits, the rights of corporations, or his favorite punching bag, affirmative action, Justice Thomas made it clear that, in Clarenceworld, the Constitution guarantees you almost nothing, save the right to own a gun. Luckily, for a long time, no one else on the bench seemed interested in moving to Clarenceworld, so Justice Thomas enjoyed a sort of “crazy uncle” status on the Supreme Court.

But all that changed when America’s even crazier uncle became president. With the appointment of two arch-conservatives – particularly Neil Gorsuch, who definitely owns a plot in Clarenceworld, if not an entire McMansion – Justice Thomas has set his sights on the renewed possibility of a conservative legal takeover. Since Gorsuch was appointed, the two have joined forces to call into question a raft of prior decisions whose precedents they would tweak. Or, in some cases, get rid of altogether. Top of the list, of course, is Roe v. Wade. But, judging from some of Justice Thomas’ recent comments, Obergefell is close behind. And it’s possible that a well-aimed shot at abortion law could send the rest of the civil rights dominoes tumbling down – tipping us straight into Clarenceworld.

How could that happen? It has to do with precedent: the interpretations of the Constitution established in certain cases that inform later decisions. The Supreme Court honors past precedent by following stare decisis – Latin for “let stand what has been decided” – and uses it to interpret cases that deal with similar questions, even if the facts of the case are different. Roe v. Wade, while nominally about a woman’s right to an abortion, is actually a crucial thread in a web of precedents regarding the question of privacy: where does the road end in the government’s right to regulate your life? In deciding Roe, the 1973 Supreme Court considered past decisions affirming parents’ rights to teach their children German, families’ rights to secure birth control, and the right of interracial couples to marry. And since it was decided, Roe has been cited in dozens of cases, including Obergefell, that set limits on state power over our lives and bodies. Over and over, these precedents – and the Court’s respect for stare decisis – have affirmed a robust right to privacy in making personal decisions. The government cannot forbid you from marrying the person you love, or from taking birth control, or from choosing to end a pregnancy. Also – critically – it can’t keep you from teaching your kids in German, if you’re into that (sehr gut!).

Justice Thomas – surprise surprise – is not a fan of stare decisis. The only precedents he believes in are the ones set in the OG papyrus scroll – anything decided after 1787 is subject to review. With his new anti-precedent sidekick Justice Gorsuch on the bench, Justice Thomas seems to be laying the groundwork for some prodigious unraveling of the web. In a recent dissent, he blamed the legal principle for protecting bad law. “We should not invoke stare decisis to uphold precedents that are demonstrably erroneous.” If you don’t like it, the reasoning goes, throw it out.

There’s nothing Justice Thomas dislikes more than Roe v. Wade. He has referred to it as one of the Court’s most “notoriously incorrect” decisions, and frequently calls for its review. He has also spent the past year sprinkling a bizarre but alarming breadcrumb trail between the right to abortion and the racist and classist eugenics movement, an association that experts immediately squashed but nonetheless makes for great kindling on the pro-life fire. And if you think his rancor for stare decisis ends with Roe, think again: Thomas has thrown shade at precedents set in everything from keeping racists off juries, to the right of the poor to an attorney. Emboldened by the current political climate, Justice Thomas is clearly trying to steer the Judicial Branch towards a world of his own design.

He doesn’t drive alone, of course. He and Justice Ginsberg are more or less at war over his assault on Roe v. Wade, and she’s backed by her liberal colleagues on the bench, riled-up Congressional Dems, and the 58% of American adults who say abortion should be legal in most cases. For as long as the right to abortion is safe, the right to same sex marriage is too, tucked into a complex web that protects our civil rights. But if a conservative majority does succeed in cutting out Roe, the hole left behind could eventually begin to unravel Obergefell. And there, but for the grace of RBG, goes the gayborhood.

So keep agitating, queers. Keep voting and keep marching and keep hollering for everyone’s rights, whether they apply directly to you or not. Thanks to the legacy of stare decisis, they’re all of a piece – and they all could get bulldozed to make room for Clarenceworld.

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Rachel Garbus is a writer, performer, teacher, and who knows what all else in Brooklyn, NY, formerly of Atlanta. She does live comedy, writes essays, and is woefully inept with all plants. Follow her at @goodgraciousrachel.

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