People don't realize the concept of an obiter dictum, and how it's used in court cases. It has nothing to do with law or precedent. And although it can be moving and seem important, it really isn't important. Because it has no legal force. For example, in Bowers v. Hardwick, Chief Justice Warren Burger at one point went on a verbal tirade, in the records, as he talked with fellow justice Harry Blackmun. And that he was appalled by homosexual acts, and that in his opinion, it should be punished by death. In his opinion, or obiter dictum. That was just his opinion. But he still thought there might be a general right to privacy in the Constitution. In 2003, with Lawrence v. Texas, Bowers was overturned. But Clarence Thomas, with Scalia disagreed, that the statute was valid, writing "I write separately to note that the law before the Court today is uncommonly silly. If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated." In other words, his obiter dictum was that he was not a homophobe, like Warren Burger, which was the nice part. But unlike Burger, the part of his opinion that had legal force was that there's nothing in the Constitution at all to protect consensual sex, or abortion or contraception. Burger's opinions sounds harsh. But really opened the door to Lawrence, ultimately legalizing gay sex. Thomas said there were no rights like that in our constitution. No insults this time. But from a legal standpoint, what he said was much worse.
